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Monday, October 10, 2016

the constitutional validity of Section 2(q) of the Protection of Women from Domestic Violence Act, 2005, (hereinafter referred to as “the 2005 Act”). =An application was moved before the learned Metropolitan Magistrate for a discharge of respondent Nos. 2 to 4 stating that as the complaint was made under Section 2(a) read with Section 2(q) of the 2005 Act, it can only be made against an adult male person and the three respondents not being adult male persons were, therefore, required to be discharged. The Metropolitan Magistrate passed an order dated 5.1.2012 in which such discharge was refused. In a writ petition filed against the said order, on 15.2.2012, the Bombay High Court, on a literal construction of the 2005 Act, discharged the aforesaid three respondents from the complaint. We have been informed that this order has since attained finality. 5. The present proceedings arise because mother and daughter have now filed a writ petition, being writ petition No.300/2013, in which the constitutional validity of Section 2(q) has been challenged.= We, therefore, set aside the impugned judgment of the Bombay High Court and declare 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

                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL NO.  10084  of 2016
                (ARISING OUT OF SLP (CIVIL) NO. 9132 OF 2015)


HIRAL P. HARSORA AND ORS.               …APPELLANTS

                             VERSUS

KUSUM NAROTTAMDAS HARSORA
AND ORS.                                     …RESPONDENTS



                           J  U  D  G  M  E  N  T

R.F. Nariman, J.

1.    Leave granted.

2.    The present appeal arises out of  a  judgment  dated  25.9.2014  of  a
Division Bench of the Bombay High Court.  It raises  an  important  question
as to the constitutional validity of  Section  2(q)  of  the  Protection  of
Women from Domestic Violence Act, 2005, (hereinafter  referred  to  as  “the
2005 Act”).

3.    On 3.4.2007, Kusum Narottam Harsora and  her  mother  Pushpa  Narottam
Harsora  filed  a  complaint  under  the  2005  Act  against  Pradeep,   the
brother/son, and his wife, and two sisters/daughters, alleging various  acts
of violence against them.  The said complaint  was  withdrawn  on  27.6.2007
with liberty to file a fresh complaint.

4.    Nothing happened for over three years till the same duo of mother  and
daughter filed two separate  complaints  against  the  same  respondents  in
October, 2010.  An application was moved  before  the  learned  Metropolitan
Magistrate for a discharge of respondent Nos. 2 to 4  stating  that  as  the
complaint was made under Section 2(a) read with Section  2(q)  of  the  2005
Act, it can only be  made  against  an  adult  male  person  and  the  three
respondents not being adult male persons were,  therefore,  required  to  be
discharged.  The Metropolitan Magistrate passed an order dated  5.1.2012  in
which such discharge was refused.  In a  writ  petition  filed  against  the
said order, on 15.2.2012, the Bombay High Court, on a  literal  construction
of the 2005  Act,  discharged  the  aforesaid  three  respondents  from  the
complaint.  We have  been  informed  that  this  order  has  since  attained
finality.

5.    The present proceedings arise because mother  and  daughter  have  now
filed a writ  petition,  being  writ  petition  No.300/2013,  in  which  the
constitutional validity of Section 2(q)  has  been  challenged.  Though  the
writ petition was amended, there was  no  prayer  seeking  any  interference
with  the  order  dated  15.2.2012,  which,  as  has  already  been   stated
hereinabove, has attained finality.

6.    The Bombay High Court by the impugned  judgment  dated  25.9.2014  has
held that Section 2(q) needs to be read down in the following manner:-

“In view of the above discussion and in view of the fact that  the  decision
of the Delhi High Court in Kusum Lata Sharma's case has not  been  disturbed
by the Supreme Court, we  are  inclined  to  read  down  the  provisions  of
section 2(q) of the DV Act and to hold that the provisions  of  "respondent"
in section 2(q) of the DV Act is not to be read in isolation but has  to  be
read as a part of the scheme of the DV Act, and particularly along with  the
definitions of  "aggrieved  person",  “domestic  relationship"  and  "shared
household" in clauses (a), (f) and (s) of section 2 of the  DV  Act.  If  so
read, the complaint alleging acts of domestic violence is  maintainable  not
only against an adult male person who is son or brother, who is or has  been
in  a  domestic relationship  with  the  aggrieved  complainant-  mother  or
sister, but the complaint can also be filed against a relative  of  the  son
or brother including wife of the son / wife of the brother  and  sisters  of
the male respondent. In other words, in our view, the complaint against  the
daughter-in-law, daughters  or  sisters  would  be  maintainable  under  the
provisions of the DV Act, where they are co-  respondent/s  in  a  complaint
against an adult male person, who is or has been in a domestic  relationship
with the complainant and such co- respondent/s. It must, of course, be  held
that a complaint  under  the  DV  Act  would  not  be  maintainable  against
daughter-in-law,  sister-in-  law  or  sister  of  the  complainant,  if  no
complaint is filed against an adult male person of the family.”


7.    The present appeal has been filed against this judgment.   Shri  Harin
P. Raval, learned senior advocate appearing on  behalf  of  the  appellants,
assailed the judgment, and has argued before us that it is  clear  that  the
“respondent” as defined in Section 2(q) of the said Act  can  only  mean  an
adult male person.  He has further argued that the proviso to  Section  2(q)
extends “respondent” only in the case of an aggrieved wife or female  living
in a relationship in the nature of a marriage, in which case even  a  female
relative of the husband or male partner may be arraigned  as  a  respondent.
He sought to assail the judgment on the ground that the Court has  not  read
down the provision of Section 2(q), but has in fact read  the  proviso  into
the  main  enacting  part  of  the  said  definition,  something  that   was
impermissible in law.  He has argued before us that the 2005 Act is a  penal
statute and should be strictly construed in the event of any ambiguity.   He
further argued that in fact there was no ambiguity  because  the  expression
“adult male person” cannot be diluted in the manner done by the  High  Court
in the impugned judgment. He cited  a  large  number  of  judgments  on  the
golden rule of literal construction, on how reading down cannot  be  equated
to re-reading in  constitutional  law,  and  on  how  a  proviso  cannot  be
introduced into the main part of a provision so as to distort its  language.
He also cited before us judgments which stated that even  though  a  statute
may lead to some hardship, that would not necessarily render  the  provision
unconstitutional nor, in the process of interpretation, can a Court mend  or
bend the provision in the face of the plain language used.   He  also  cited
judgments before us stating that given the plain language, it is clear  that
it is only for the legislature to make the changes  suggested  by  the  High
Court.

8.    Ms. Meenakshi Arora, learned senior counsel  appearing  on  behalf  of
the respondents, countered each of these submissions.  First  and  foremost,
she argued that the 2005 Act is a piece  of  social  beneficial  legislation
enacted to protect women from domestic violence of all  kinds.   This  being
the case, it is 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 or read down.  According to  her,  given  the
object of the statute, which is discernible clearly from  the  statement  of
objects and reasons, the preamble, and various provisions of  the  2005  Act
which she took us through, it is  clear  that  the  expression  “adult  male
person” is a classification not based on any intelligible  differentia,  and
not having any rational relationship with the object sought to  be  achieved
by the Act.  In fact, in her submission, the said expression  goes  contrary
to the  object  of  the  Act,  which  is  to  afford  the  largest  possible
protection to women from domestic violence by any person,  male  or  female,
who happens to share either a  domestic  relationship  or  shared  household
with the said woman. In the alternative, she  argued  that  the  High  Court
judgment was right, and that if the said expression is not struck  down,  it
ought to be read down in the manner suggested  to  make  it  constitutional.
She also added that the doctrine of severability would come to  her  rescue,
and that if the said expression were deleted from Section 2(q), the  Act  as
a whole would stand and the object sought to be achieved would only then  be
fulfilled.  She referred to a large number of judgments on  Article  14  and
the doctrine of severability generally.  She also  argued  that  within  the
definition  of  “shared  household”  in  Section  2(s)  of  the   Act,   the
“respondent” may be a member of a joint family.  She  has  adverted  to  the
amendment made to the Hindu Succession  Act  in  2005,  by  which  amendment
females have also become coparceners  in  a  joint  Hindu  family,  and  she
argued that therefore the 2005  Act  is  not  in  tune  with  the  march  of
statutory law in other areas. She also  countered  the  submission  of  Shri
Raval  stating  that  the  2005  Act  is  in  fact  a  piece  of  beneficial
legislation which is not penal in nature but which affords various  remedies
which are innovative in nature  and  which  cannot  be  availed  of  in  the
ordinary civil  courts.  She  added  that  Section  31  alone  was  a  penal
provision for not complying with a protection order, and went  on  to  state
that the modern rule as to penal provisions is different  from  that  sought
to be contended by Shri Raval, and that such  rule  requires  the  court  to
give a fair interpretation to the  provisions  of  these  statutes,  neither
leaning in favour of the accuser or the accused. She also added  that  given
the beneficial statute that we have to strike  down/interpret,  a  purposive
construction alone should be given, and as the offending  expression  “adult
male person” is contrary to such purpose and would lead to  absurdities  and
anomalies, it ought to be construed in tune with the Act as a  whole,  which
therefore would include females, as well, as respondents.  She also  pointed
out that, at present, the sweep of the Act was such that if a  mother-in-law
or sister-in-law were  to  be  an  aggrieved  person,  they  could  only  be
aggrieved against adult male members and not  against  any  opposing  female
member of a joint family – for example, a daughter-in-law  or  a  sister-in-
law.  This will unnecessary stultify what was sought to be achieved  by  the
Act, and would make the Act a dead  letter  insofar  as  these  persons  are
concerned. She also argued that the Act would become unworkable in that  the
reliefs that were to be given would  only  be  reliefs  against  adult  male
members and not their abettors who may be females.

9.    Ms. Pinky Anand, learned Additional Solicitor General for India,  more
or less adopted the arguments of the counsel who appeared for the  Union  of
India in the Bombay High Court.  It was her submission that in view  of  the
judgment in Kusum Lata Sharma v.  State  (Crl.  M.C.  No.75  of  2011  dated
2.9.2011) of the Delhi High Court, laying down  that  the  mother-in-law  is
also entitled to file a complaint  against  the  daughter-in-law  under  the
provisions of the 2005 Act, and the SLP against  the  said  judgment  having
been dismissed by the Supreme Court, her stand was that it would be open  to
a mother-in-law to file a complaint against her son as well as her daughter-
in-law and other female relatives of the son.  In short, she submitted  that
the impugned judgment does not require interference at our end.

10.   This appeal therefore raises a very important question in the area  of
protection of the female sex generally.  The Court has  first  to  ascertain
what exactly is the object sought to be achieved by the 2005 Act.  In  doing
so, this Court has  to  see  the  statement  of  objects  and  reasons,  the
preamble and the provisions of the 2005 Act as a whole.  In so  doing,  this
Court is  only  following  the  law  already  laid  down  in  the  following
judgments.

11.   In Shashikant Laxman Kale v. Union of India, (1990) 2  SCR  441,  this
Court was faced with the constitutional validity  of  an  exemption  section
contained in the Indian Income Tax Act, 1961. After referring in  detail  to
Re: Special Courts Bill, 1979 2 SCR  476  and  the  propositions  laid  down
therein on Article 14 generally and a few other judgments, this Court held:-

“It is first necessary  to  discern  the  true  purpose  or  object  of  the
impugned enactment because it is only with reference to the true  object  of
the enactment that the existence of a rational nexus of the  differentia  on
which the classification is based, with the object sought to be achieved  by
the enactment, can be examined to test the validity of  the  classification.
In Francis Bennion's Statutory Interpretation, (1984 edn.), the  distinction
between  the  legislative  intention  and  the  purpose  or  object  of  the
legislation has been succinctly summarised at p. 237 as under:
“The distinction between the purpose or  object  of  an  enactment  and  the
legislative intention governing  it  is  that  the  former  relates  to  the
mischief to which the enactment  is  directed  and  its  remedy,  while  the
latter relates to the legal meaning of the enactment.”

There is thus a clear distinction between the  two.  While  the  purpose  or
object of the legislation is  to  provide  a  remedy  for  the  malady,  the
legislative intention relates to the meaning or exposition of the remedy  as
enacted. While dealing with the validity of a classification,  the  rational
nexus of the differentia on which the classification is based has  to  exist
with the purpose or object of the legislation, so determined.  The  question
next is of the manner in which the purpose or object of  the  enactment  has
to be determined and the material which can be used for this  exercise.  For
determining the purpose or object of the legislation, it is  permissible  to
look into the circumstances which prevailed at the time  when  the  law  was
passed and which necessitated the passing  of  that  law.  For  the  limited
purpose of appreciating the background and  the  antecedent  factual  matrix
leading to the legislation, it is permissible to look into the Statement  of
Objects and Reasons of the Bill which actuated the step to provide a  remedy
for  the  then  existing  malady.   In A.   Thangal   Kunju   Musaliar v. M.
Venkitachalam Potti [(1955) 2 SCR 1196 : AIR 1956 SC 246  :  (1956)  29  ITR
349] , the Statement of  Objects  and  Reasons  was  used  for  judging  the
reasonableness of a classification  made  in  an  enactment  to  see  if  it
infringed or  was  contrary  to  the  Constitution.  In  that  decision  for
determining the question, even affidavit on behalf  of  the  State  of  “the
circumstances  which  prevailed  at  the  time  when  the  law  there  under
consideration had been passed and which necessitated  the  passing  of  that
law” was relied on. It was reiterated in State of  West  Bengal v. Union  of
India [(1964) 1 SCR 371 : AIR 1963 SC 1241] that the  Statement  of  Objects
and Reasons accompanying a Bill, when introduced in Parliament, can be  used
for ‘the limited purpose of understanding the background and the  antecedent
state of affairs leading up  to  the  legislation’.  Similarly,  in Pannalal
Binjraj v. Union of India [1957 SCR 233 : AIR 1957 SC 397 :  (1957)  31  ITR
565] a challenge to the validity  of  classification  was  repelled  placing
reliance on an affidavit filed on behalf of the  Central  Board  of  Revenue
disclosing the true object of enacting the impugned provision in the  Income
Tax Act.”


12.   To similar effect, this Court held in Harbilas Rai Bansal v. State  of
Punjab, (1996) 1 SCC 1, as follows:

“The scope of Article 14 has been authoritatively laid down  by  this  Court
in   innumerable   decisions   including   Budhan    Choudhry v. State    of
Bihar [(1955) 1 SCR 1045 : AIR 1955 SC 191] , Ram Krishna  Dalmia v. Justice
S.R. Tendolkar [1959 SCR 279 : AIR 1958  SC  538]  , Western  U.P.  Electric
Power and Supply Co. Ltd. v. State of  U.P. [(1969)  1  SCC  817]  and Mohd.
Hanif Quareshi v. State of Bihar [1959 SCR 629 : AIR 1958 SC 731]  .  To  be
permissible under Article 14  of  the  Constitution  a  classification  must
satisfy two conditions namely (i) that the classification  must  be  founded
on an intelligible differentia which distinguishes persons  or  things  that
are grouped together from others  left  out  of  the  group  and  (ii)  that
differentia must have a  rational  relation  to  the  object  sought  to  be
achieved by the statute in question. The classification may  be  founded  on
different basis, but what is  necessary  is  that  there  must  be  a  nexus
between the basis  of  classification  and  the  object  of  the  Act  under
consideration.

The statement of objects and reasons of the Act is as under:
“Statement of Objects and Reasons of the East Punjab Urban Rent  Restriction
Act, 1949 (Act 3 of 1949).—  Under  Article  6  of  the  India  (Provisional
Constitution) Order, 1947, any law made by the Governor  of  the  Punjab  by
virtue of Section 93 of the Government of India  Act,  1935,  which  was  in
force immediately before 15-8-1947, is to remain  in  force  for  two  years
from the date on which the Proclamation ceased to have effect,  viz.,  14-8-
1947. A Governor's Act will, therefore, cease to have effect  on  14-8-1949.
It is desired that the Punjab Urban Rent Restriction Act, 1947  (Punjab  Act
No. VI of 1947), being a  Governor's  Act,  be  re-enacted  as  a  permanent
measure, as the need for  restricting  the  increase  of  rents  of  certain
premises situated within the limits of urban areas  and  the  protection  of
tenants against mala fide attempts  by  their  landlords  to  procure  their
eviction would be there even after 14-8-1949.
In  order  to  achieve  the  above  object,  a  new  Act  incorporating  the
provisions of the Punjab Urban Rent Restriction  Act,  1947  with  necessary
modification is being enacted.”
It is obvious from the objects and reasons quoted  above  that  the  primary
purpose for legislating the Act was to protect the tenants against the  mala
fide attempts by their  landlords  to  procure  their  eviction.  Bona  fide
requirement of  a  landlord  was,  therefore,  provided  in  the  Act  —  as
originally enacted — a ground to evict the tenant from the premises  whether
residential or non-residential.

The  provisions  of  the  Act,  prior  to  the  amendment,  were   uniformly
applicable to the residential and non-residential buildings. The  amendment,
in the year 1956, created  the  impugned  classification.  The  objects  and
reasons of the Act indicate that it was enacted with a view to restrict  the
increase of rents and  to  safeguard  against  the  mala  fide  eviction  of
tenants. The Act, therefore, initially provided — conforming to its  objects
and reasons — bona  fide  requirement  of  the  premises  by  the  landlord,
whether residential or non-residential, as  a  ground  of  eviction  of  the
tenant. The classification created by the amendment has no  nexus  with  the
object sought to be achieved by the Act. To vacate a premises for  the  bona
fide requirement of the  landlord  would  not  cause  any  hardship  to  the
tenant. Statutory protection to a tenant  cannot  be  extended  to  such  an
extent that the landlord is precluded from evicting the tenant for the  rest
of his life even when he bona fide requires the premises  for  his  personal
use and occupation. It  is  not  the  tenants  but  the  landlords  who  are
suffering  great  hardships  because  of  the  amendment.  A  landlord   may
genuinely like to let out a shop till the time he bona fide needs the  same.
Visualise a case of a shopkeeper (owner) dying young. There  may  not  be  a
member in the family to continue the business and the  widow  may  not  need
the shop for quite some time. She may like to let  out  the  shop  till  the
time her children grow up and need the premises for their personal  use.  It
would be wholly arbitrary — in a situation like  this  —  to  deny  her  the
right to evict the tenant. The amendment has created  a  situation  where  a
tenant can continue in possession of a  non-residential  premises  for  life
and even after the tenant's death his heirs may  continue  the  tenancy.  We
have no doubt in our mind that the objects, reasons and the  scheme  of  the
Act could not have envisaged the type of situation created by the  amendment
which is patently harsh and grossly  unjust  for  the  landlord  of  a  non-
residential premises.” [paras 8, 9 &13]


13.   In accordance with  the  law  laid  down  in  these  judgments  it  is
important first to discern the object of the 2005 Act from the statement  of
objects and reasons:-

STATEMENT OF OBJECTS AND REASONS

1.  Domestic violence is  undoubtedly  a  human  rights  issue  and  serious
deterrent to  development.  The  Vienna  Accord  of  1994  and  the  Beijing
Declaration and the Platform for Action (1995) have acknowledged  this.  The
United Nations Committee on  Convention  on  Elimination  of  All  Forms  of
Discrimination Against Women (CEDAW) 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.

2. 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 the Indian Penal Code. The civil law does not  however
address this phenomenon in its entirety.

3. It is, therefore, proposed to enact a law  keeping  in  view  the  rights
guaranteed under articles 14, 15 and 21 of the Constitution to  provide  for
a remedy under the civil law which is intended to  protect  the  woman  from
being victims  of  domestic  violence  and  to  prevent  the  occurrence  of
domestic  violence in the society.

4. The Bill, inter alia, seeks to provide for the following:-

(i)   It covers those women who are or have been in a relationship with  the
abuser where both parties have lived together in a shared household and  are
related by consanguinity, marriage or through a relationship in  the  nature
of marriage or adoption. In  addition,  relationships  with  family  members
living together as a joint family are also included. Even  those  women  who
are sisters, widows, mothers, single women, or living with  the  abuser  are
entitled to  legal  protection  under  the  proposed  legislation.  However,
whereas the Bill enables the wife or the female living in a relationship  in
the nature of marriage to file a  complaint  under  the  proposed  enactment
against any female relative of husband or the  male  partner,  it  does  not
enable any female relative of the husband or the  male  partner  to  file  a
complaint against the wife or the female partner.

(ii)  It defines the expression “domestic violence” to include actual  abuse
or threat or abuse that is physical, sexual, verbal, emotional or  economic.
Harassment by way of unlawful dowry demands to the woman  or  her  relatives
would also be covered under this definition.

(iii) It provides for the  rights  of  women  to  secure  housing.  It  also
provides household, whether or not she has any title or rights in such  home
or household. This right is secured by a residence order,  which  is  passed
by the Magistrate.

iv)   It empowers the Magistrate to pass protection orders in favour of  the
aggrieved person to prevent the respondent from aiding or committing an  act
of domestic violence or any other specified act,  entering  a  workplace  or
any  other  place  frequented  by  the  aggrieved  person,   attempting   to
communicate with her, isolating any assets  used by  both  the  parties  and
causing violence to the  aggrieved  person,  her  relatives  or  others  who
provide her assistance from the domestic violence.

(v)   It provides for appointment of Protection  Officers  and  registration
of  non-governmental  organizations  as  service  providers  for   providing
assistance  to  the  aggrieved   person  with   respect   to   her   medical
examination, obtaining legal aid, safe shelter, etc.

5.  The Bill seeks to achieve  the  above  objects.  The  notes  on  clauses
explain the various provisions contained in the Bill.”



14.   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.

15.   The preamble of the statute is again significant.  It states:

Preamble

“An Act to provide for more effective protection  of  the  rights  of  women
guaranteed under the constitution who are victims of violence  of  any  kind
occurring  within  the  family  and  for  matters  connected  therewith   or
incidental thereto.”
16.   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.  With this object in mind,  let
us now examine the provisions of the statute itself.

17.   The relevant provisions of the statute are contained in the  following
Sections:

“2. Definitions.—In this Act, unless the context otherwise requires,—

(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;

(f) “domestic relationship” means a relationship  between  two  persons  who
live or have, at any point of time, lived together in  a  shared  household,
when they are related by consanguinity, marriage, or through a  relationship
in the nature of marriage, adoption or are family  members  living  together
as a joint family;

(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:
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.

(s) “shared household” means a household where the  person  aggrieved  lives
or at any stage has lived in a domestic relationship either singly or  along
with the respondent and includes such a household whether owned or  tenanted
either jointly by the aggrieved person  and  the  respondent,  or  owned  or
tenanted by either of them in respect of which either the  aggrieved  person
or the respondent or both jointly or singly have any right, title,  interest
or equity and includes such a  household  which  may  belong  to  the  joint
family of which the respondent is a  member,  irrespective  of  whether  the
respondent or the aggrieved person has any right, title or interest  in  the
shared household.

3. Definition of domestic violence.—For the purposes of this Act,  any  act,
omission or  commission  or  conduct  of  the  respondent  shall  constitute
domestic violence in case it—
(a) harms or injures or endangers the health, safety, life,  limb  or  well-
being, whether mental or physical, of the aggrieved person or  tends  to  do
so and includes causing physical abuse, sexual abuse, verbal  and  emotional
abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with  a  view
to coerce her or any other person  related  to  her  to  meet  any  unlawful
demand for any dowry or other property or valuable security; or

(c) has the effect  of  threatening  the  aggrieved  person  or  any  person
related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical  or  mental,  to  the
aggrieved person. Explanation I.—For the purposes of this section,—
(i) “physical abuse” means any act or conduct which is of such a  nature  as
to cause bodily pain, harm, or danger to life, limb,  or  health  or  impair
the health or development of the  aggrieved  person  and  includes  assault,
criminal intimidation and criminal force;
(ii) “sexual abuse” includes any conduct of a  sexual  nature  that  abuses,
humiliates, degrades or otherwise violates the dignity of woman;
(iii) “verbal and emotional abuse” includes—
(a) insults, ridicule, humiliation, name calling  and  insults  or  ridicule
specially with regard to not having a child or a male child; and
(b) repeated threats to cause physical  pain  to  any  person  in  whom  the
aggrieved person is interested.
(iv) “economic abuse” includes—
(a) deprivation of all or any economic or financial resources to  which  the
aggrieved person is entitled under any law or custom whether  payable  under
an order of a court or otherwise or which the aggrieved person requires  out
of necessity including, but not limited to, household  necessities  for  the
aggrieved person and her children, if any, stridhan,  property,  jointly  or
separately owned by the aggrieved person, payment of rental related  to  the
shared household and maintenance;
(b) disposal of household effects, any alienation of assets whether  movable
or immovable, valuables, shares, securities, bonds and  the  like  or  other
property in which the aggrieved person has an interest  or  is  entitled  to
use by virtue of the  domestic  relationship  or  which  may  be  reasonably
required by the aggrieved person or her children  or  her  stridhan  or  any
other property jointly or separately held by the aggrieved person; and
(c) prohibition  or  restriction  to  continued  access  to   resources   or
facilities which the aggrieved person is entitled to use or enjoy by  virtue
of the domestic relationship  including  access  to  the  shared  household.
Explanation II.—For the purpose of determining whether  any  act,  omission,
commission or conduct of  the  respondent  constitutes  “domestic  violence”
under this section, the overall facts and circumstances of  the  case  shall
be taken into consideration.

17. Right to reside in a shared household.—
(1) Notwithstanding anything contained in any other law for the  time  being
in force, every woman in a domestic relationship shall  have  the  right  to
reside in the shared household, whether or not she has any right,  title  or
beneficial interest in the same.

(2) The aggrieved person shall not be evicted or excluded  from  the  shared
household or any part of it by the respondent save in  accordance  with  the
procedure established by law.

18. Protection  orders.—The  Magistrate  may,  after  giving  the  aggrieved
person and the respondent an opportunity of being heard and on  being  prima
facie satisfied that domestic violence has taken place or is likely to  take
place, pass a protection  order  in  favour  of  the  aggrieved  person  and
prohibit the respondent from—
(a) committing any act of domestic violence;
(b) aiding or abetting in the commission of acts of domestic violence;
(c) entering the place of employment of the  aggrieved  person  or,  if  the
person aggrieved is a child, its school or any  other  place  frequented  by
the aggrieved person;
(d) attempting to communicate in any form, whatsoever,  with  the  aggrieved
person, including personal, oral or  written  or  electronic  or  telephonic
contact;
(e) alienating any assets, operating bank lockers or bank accounts  used  or
held or enjoyed by both the parties, jointly by  the  aggrieved  person  and
the respondent or singly by the respondent, including her  stridhan  or  any
other property held either jointly by the  parties  or  separately  by  them
without the leave of the Magistrate;
(f) causing violence to the dependants, other relatives or  any  person  who
give the aggrieved person assistance from domestic violence;
(g) committing any other act as specified in the protection order.

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  of  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:
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
person 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 officer-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.

20. Monetary reliefs.—
(1) While disposing of an application under sub-section (1) of  section  12,
the Magistrate may direct the respondent to pay monetary relief to meet  the
expenses incurred and losses suffered by the aggrieved person and any  child
of the aggrieved person as a  result  of  the  domestic  violence  and  such
relief may include but is not limited to—
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due  to  the  destruction,  damage  or  removal  of  any
property from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well  as  her  children,  if
any, including an order under or in addition  to  an  order  of  maintenance
under section 125 of the Code of Criminal Procedure, 1973  (2  of  1974)  or
any other law for the time being in force.

(2) The monetary relief granted under this section shall be  adequate,  fair
and reasonable and consistent with the  standard  of  living  to  which  the
aggrieved person is accustomed.

(3) The Magistrate shall have the power to order  an  appropriate  lump  sum
payment or monthly payments of maintenance, as the nature and  circumstances
of the case may require.

(4) The Magistrate shall send a copy of the order for monetary  relief  made
under sub-section (1) to the parties to  the  application  and  to  the  in-
charge of the police station within the local limits of  whose  jurisdiction
the respondent resides.

(5) The respondent shall pay the monetary relief granted  to  the  aggrieved
person within the period specified in the order under sub-section (1).

(6) Upon the failure on the part of the respondent to make payment in  terms
of the order under sub-section (1), the Magistrate may direct  the  employer
or a debtor of the respondent, to directly pay to the  aggrieved  person  or
to deposit with the court a portion of the wages or salaries or debt due  to
or accrued to the credit of the respondent, which  amount  may  be  adjusted
towards the monetary relief payable by the respondent.

26. Relief in other suits and legal proceedings.—


1.  Any relief available under sections 18, 19, 20, 21 and 22  may  also  be
sought in any legal proceeding, before a civil  court,  family  court  or  a
criminal court, affecting the aggrieved person and  the  respondent  whether
such proceeding was initiated before or after the commencement of this Act.


2.  Any relief referred to in sub-section (1) may be sought for in  addition
to and along with any other relief that the aggrieved  person  may  seek  in
such suit or legal proceeding before a civil or criminal court.


3.  In case any relief has been obtained by  the  aggrieved  person  in  any
proceedings other than a proceeding under this Act, she shall  be  bound  to
inform the Magistrate of the grant of such relief.

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 extend 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 charges 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.”


18.   It will be noticed that  the  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.   A
reading of these definitions makes  it  clear  that  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.  Equally,  a  shared  household
includes  a  household  which  belongs  to  a  joint  family  of  which  the
respondent is a member.  As has been rightly pointed out by Ms. Arora,  even
before the 2005  Act  was  brought  into  force  on  26.10.2006,  the  Hindu
Succession Act,1956 was amended,  by  which  Section  6  was  amended,  with
effect from 9.9.2005, to make females coparceners of a  joint  Hindu  family
and so have a right by birth in the property of  such  joint  family.   This
being the case, when a member of a joint Hindu family  will  now  include  a
female coparcener as well, the restricted definition  contained  in  Section
2(q) has necessarily to be given a relook,  given  that  the  definition  of
‘shared household’ in Section 2(s) of the  Act  would  include  a  household
which may belong to a joint family of which  the  respondent  is  a  member.
The aggrieved person  can  therefore  make,  after  2006,  her  sister,  for
example, a respondent, if the  Hindu  Succession  Act  amendment  is  to  be
looked at.  But such is not the case under Section 2(q) of the 2005 Act,  as
the main part of Section 2(q) continues to read “adult male  person”,  while
Section 2(s) would include such female coparcener as a respondent,  being  a
member of a joint family.  This is one glaring  anomaly  which  we  have  to
address in the course of our judgment.

19.   When Section 3 of the 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.  When one goes to the remedies  that  the  Act
provides, things become even clearer.  Section 17(2)  makes  it  clear  that
the aggrieved person cannot be evicted or excluded from a  shared  household
or any part of it by the “respondent” save in accordance with the  procedure
established by law.  If “respondent” is to be read as  only  an  adult  male
person, it is clear that women who evict or  exclude  the  aggrieved  person
are not within its coverage, and if that is so, the object of  the  Act  can
very easily be defeated  by  an  adult  male  person  not  standing  in  the
forefront, but putting forward female persons who  can  therefore  evict  or
exclude the aggrieved person from the shared household.  This  again  is  an
important indicator that the object of the Act will  not  be  sub-served  by
reading “adult male person” as “respondent”.

20.   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.

21.   When we come to Section 19 and residence orders that can be passed  by
the Magistrate, Section 19(1)(c) makes it  clear  that  the  Magistrate  may
pass a residence order, on being satisfied that domestic violence has  taken
place, and may  restrain  the  respondent  or  any  of  his  relatives  from
entering any portion of the shared household in which the  aggrieved  person
resides.  This again is a pointer to the fact that a  residence  order  will
be toothless unless the relatives, which include  female  relatives  of  the
respondent, are also bound by it.  And we have seen from the  definition  of
“respondent” that this can only be the case when a  wife  or  a  common  law
wife is an aggrieved person, and not if  any  other  woman  belonging  to  a
family is an aggrieved person. Therefore, in the case of a wife or a  common
law  wife  complaining  of  domestic  violence,  the   husband’s   relatives
including mother-in-law and sister-in-law can be arrayed as respondents  and
effective orders passed against them.  But in the case  of  a  mother-in-law
or sister-in-law who is an aggrieved person, the respondent can only  be  an
“adult male person” and since his relatives are not within the main part  of
the definition of respondent in Section 2(q),  residence  orders  passed  by
the Magistrate under Section  19(1)(c)  against  female  relatives  of  such
person would be unenforceable as they cannot be made  parties  to  petitions
under the Act.

22.   When we come to Section 20, it is clear that a Magistrate  may  direct
the respondent to pay monetary relief to the aggrieved  person,  of  various
kinds, mentioned in the Section.  If the respondent is only to be an  “adult
male person”, and the money payable has  to  be  as  a  result  of  domestic
violence, compensation due from a daughter-in-law to  a  mother-in-law   for
domestic violence inflicted would not be available, whereas  in  a  converse
case, the daughter-in-law, being a wife, would be covered by the proviso  to
Section 2(q) and would consequently be entitled to monetary  relief  against
her husband and his female relatives, which includes the mother-in-law.

23.   When we come to Section 26 of the Act, the sweep of the  Act  is  such
that all the innovative reliefs available under Sections 18 to 22  may  also
be sought in any legal proceeding before a  civil  court,  family  court  or
criminal court affecting the  aggrieved  person  and  the  respondent.   The
proceeding in the civil court, family  court  or  criminal  court  may  well
include female members of a  family,  and  reliefs  sought  in  those  legal
proceedings would not be restricted by the  definition  of  “respondent”  in
the 2005 Act.  Thus, an  invidious  discrimination  will  result,  depending
upon whether the aggrieved person chooses  to  institute  proceedings  under
the 2005 Act or chooses to add to the reliefs available in either a  pending
proceeding or a later proceeding in a civil court, family court or  criminal
court. It is clear that there  is  no  intelligible  differentia  between  a
proceeding initiated under the 2005 Act and proceeding  initiated  in  other
fora under other Acts, in which the self-same reliefs grantable  under  this
Act, which are restricted to an adult male  person,  are  grantable  by  the
other fora also against female members of  a  family.   This  anomaly  again
makes it clear that the 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.   The  restriction  of  such
person to being an adult male alone is obviously  not  a  differentia  which
would be in sync with the object sought to be achieved under the  2005  Act,
but would in fact be contrary to it.

24.    Also,  the  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. Examples  can  be  multiplied,
all of which would only lead to the  conclusion  that  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”.

25.    Shri  Raval  has  cited  a  couple  of  judgments  dealing  with  the
provisions of the 2005 Act. For the sake of completeness, we  may  refer  to
two of them.



26.   In Sandhya Manoj Wankhade v. Manoj  Bhimrao  Wankhade,  (2011)  3  SCC
650, this Court, in a petition by a married woman against  her  husband  and
his relatives, construed the proviso to Section 2(q) of the 2005 Act.   This
Court held:

“No restrictive meaning has been given to  the  expression  “relative”,  nor
has the said expression been specifically defined in the  Domestic  Violence
Act, 2005, to make it specific to males only. In such circumstances,  it  is
clear that the legislature never intended to  exclude  female  relatives  of
the husband or male partner from the ambit of a complaint that can  be  made
under the provisions of the Domestic Violence Act, 2005.” [Para 16]


27.   In Indra Sarma v. V.K.V. Sarma,  (2013)  15  SCC  755,  the  appellant
entered into a live-in relationship with the respondent knowing that he  was
a married person.  A question arose before this  Court  as  to  whether  the
appellant could be said to be in a relationship in the nature  of  marriage.
Negativing this contention, this Court held:

“The appellant, admittedly, entered into a  live-in  relationship  with  the
respondent knowing  that  he  was  a  married  person,  with  wife  and  two
children, hence, the generic proposition laid down by the Privy  Council  in
Andrahennedige Dinohamy v.  Wijetunge Liyanapatabendige Balahamy [(1928)  27
LW 678 : AIR 1927 PC 185] , that where a man and a woman are proved to  have
lived together as husband and wife, the law presumes that  they  are  living
together in consequence of a valid marriage will not apply and,  hence,  the
relationship  between  the  appellant  and  the   respondent   was   not   a
relationship in the nature of a marriage, and the status  of  the  appellant
was that of a concubine. A concubine cannot maintain a relationship  in  the
nature of marriage because such a relationship  will  not  have  exclusivity
and will not be monogamous in character. Reference may also be made  to  the
judgments of this Court in Badri Prasadv. Director of  Consolidation [(1978)
3 SCC 527] and  Tulsa v. Durghatiya [(2008) 4 SCC 520] .


     We may note that, in the instant case, there is no necessity  to  rebut
the presumption, since the appellant was aware that  the  respondent  was  a
married person even before the commencement  of  their  relationship,  hence
the status of the appellant is that  of  a  concubine  or  a  mistress,  who
cannot enter into relationship in  the  nature  of  a  marriage.  The  long-
standing relationship as a concubine,  though  not  a  relationship  in  the
nature of a marriage, of course, may at times, deserves  protection  because
that woman might not be financially independent, but we are afraid that  the
DV Act does not take care of such relationships which may perhaps  call  for
an amendment of the definition of Section 2(f)  of  the  DV  Act,  which  is
restrictive and exhaustive.

   Parliament has to ponder over these issues, bring in  proper  legislation
or make a proper amendment of the Act, so that women and the children,  born
out of such kinds of relationships  be  protected,  though  those  types  of
relationship might not be a relationship  in  the  nature  of  a  marriage.”
[Paras 57, 59 & 64]


28.   It may be noted that in  Badshah  v.  Urmila  Badshah  Godse  &  Anr.,
(2014) 1 SCC 188, this Court held that the expression “wife” in Section  125
of the Criminal Procedure Code, includes a woman who  had  been  duped  into
marrying a man who was already married.  In so holding, this Court held:

“Thus, while interpreting a  statute  the  court  may  not  only  take  into
consideration the purpose for which the statute was enacted,  but  also  the
mischief it seeks to suppress. It is this mischief  rule,  first  propounded
in Heydon case [(1584) 3 Co Rep 7a : 76 ER 637] which became the  historical
source of purposive interpretation. The court would also  invoke  the  legal
maxim construction of ut res magis valeat  quam  pereatin  such  cases  i.e.
where alternative constructions are possible the court must give  effect  to
that which will be responsible for the smooth  working  of  the  system  for
which the statute has been enacted rather than one which  will  put  a  road
block in its  way.  If  the  choice  is  between  two  interpretations,  the
narrower of which  would  fail  to  achieve  the  manifest  purpose  of  the
legislation should be avoided. We should avoid a  construction  which  would
reduce  the  legislation  to  futility  and   should   accept   the   bolder
construction based on the view that Parliament would legislate only for  the
purpose of bringing about an effective result.  If  this  interpretation  is
not accepted, it would amount  to  giving  a  premium  to  the  husband  for
defrauding the wife.  Therefore,  at  least  for  the  purpose  of  claiming
maintenance under Section 125 Cr.P.C, such a woman is to be treated  as  the
legally wedded wife.”[Para 20]



29.   We will now deal with some of the cases cited before us  by  both  the
learned senior advocates on Article 14, reading down, and  the  severability
principle in constitutional law.

30.   Article 14 is in two parts.  The expression “equality before  law”  is
borrowed from the  Irish  Constitution,  which  in  turn  is  borrowed  from
English law, and has been described in State of U.P.  v.  Deoman  Upadhyaya,
(1961) 1 SCR  14,  as  the  negative   aspect  of  equality.     The  “equal
protection of the laws” in Article  14  has  been  borrowed  from  the  14th
Amendment to the U.S. Constitution  and  has  been  described  in  the  same
judgment as the positive aspect of equality namely the protection  of  equal
laws. Subba Rao, J. stated:

“This subject has been so frequently and recently before this court  as  not
to require an extensive consideration.  The  doctrine  of  equality  may  be
briefly stated  as  follows:  All  persons  are  equal  before  the  law  is
fundamental of every  civilised  constitution.  Equality  before  law  is  a
negative concept; equal protection of laws is a  positive  one.  The  former
declares that every one is equal before law, that no one can  claim  special
privileges and that all classes are equally subjected to  the  ordinary  law
of the land; the latter postulates an equal protection of all alike  in  the
same situation and under like circumstances. No discrimination can  be  made
either in the privileges conferred or in the liabilities imposed. But  these
propositions  conceived  in  the  interests  of  the  public,  if  logically
stretched too far, may not achieve  the  high  purpose  behind  them.  In  a
society of unequal basic structure, it is well nigh impossible to make  laws
suitable in their application to all the persons  alike.  So,  a  reasonable
classification is not only permitted but  is  necessary  if  society  should
progress. But such a classification cannot be arbitrary but  must  be  based
upon differences pertinent to the subject in respect of and the purpose  for
which it is made.” [at page 34]


31.   In Lachhman Dass v. State of Punjab, (1963) 2 SCR 353, Subba  Rao,  J.
warned that over emphasis on the doctrine of classification or   an  anxious
and  sustained  attempt  to  discover  some  basis  for  classification  may
gradually and imperceptibly  deprive Article 14  of  its  glorious  content.
That  process  would  inevitably  end  in  substituting  the   doctrine   of
classification for the doctrine of equality. This admonition seems  to  have
come true in the present case, as the classification of “adult male  person”
clearly subverts the doctrine of equality, by restricting  the  reach  of  a
social beneficial statute meant  to  protect  women  against  all  forms  of
domestic violence.

32.   We have also been referred to D.S. Nakara v. Union of India, (1983)  1
SCC 305.  This judgment concerned itself with pension payable to  Government
servants.  An office Memorandum of the Government of India  dated  25.5.1979
restricted such pension payable only to persons who had retied  prior  to  a
specific date.   In  holding  the  date  discriminatory  and  arbitrary  and
striking it down, this Court went into the doctrine of  classification,  and
cited from Re: Special Courts Bill, (1979) 2 SCR 476 and  Maneka  Gandhi  v.
Union of India, (1978) 2 SCR 621, and went on to hold  that  the  burden  to
affirmatively  satisfy  the  court  that  the  twin  tests  of  intelligible
differentia having a rational relation to the object sought to  be  achieved
by the Act would lie on the State, once  it  has  been  established  that  a
particular piece of legislation is on its face unequal.  The  Court  further
went on to hold that the  petitioners  challenged  only  that  part  of  the
scheme by which benefits were admissible to those who retired  from  service
after a certain date.  The challenge, it was made clear by  the  Court,  was
not to the validity of the  Scheme,  which  was  wholly  acceptable  to  the
petitioners, but only to that part of it  which  restricted  the  number  of
persons from availing of its benefit. The Court went on to hold:

“If it appears to be undisputable, as it does to us that the pensioners  for
the purpose of pension benefits form a  class,  would  its  upward  revision
permit  a  homogeneous  class  to  be  divided  by  arbitrarily  fixing   an
eligibility criteria unrelated  to  purpose  of  revision,  and  would  such
classification be founded on some  rational  principle?  The  classification
has to be based, as is well settled, on  some  rational  principle  and  the
rational principle must have nexus to the objects sought to be achieved.  We
have set out the objects underlying the payment of  pension.  If  the  State
considered it necessary  to  liberalise  the  pension  scheme,  we  find  no
rational principle behind it for granting these benefits only to  those  who
retired subsequent to that date simultaneously denying  the  same  to  those
who retired prior  to  that  date.  If  the  liberalisation  was  considered
necessary for augmenting social security in old age to  government  servants
then those who, retired earlier cannot be worst off than  those  who  retire
later.  Therefore,  this  division  which  classified  pensioners  into  two
classes is  not  based  on  any  rational  principle  and  if  the  rational
principle is the one of dividing pensioners with a view to giving  something
more to persons otherwise equally placed, it  would  be  discriminatory.  To
illustrate, take two persons, one retired just a day  prior  and  another  a
day just succeeding the specified date. Both were in the same  pay  bracket,
the average emolument was the same and both  had  put  in  equal  number  of
years of service. How does a  fortuitous  circumstance  of  retiring  a  day
earlier or a day later will permit totally unequal treatment in  the  matter
of pension? One retiring a day earlier will have to be  subject  to  ceiling
of Rs 8100 p.a. and average emolument to be worked out on 36 months'  salary
while the other will have a ceiling of Rs 12,000 p.a. and average  emolument
will be computed on the basis of last 10  months'  average.  The  artificial
division stares into face and is unrelated to  any  principle  and  whatever
principle, if there be any, has absolutely no nexus to  the  objects  sought
to be achieved by liberalising the pension scheme. In  fact  this  arbitrary
division has not only no nexus to the liberalised pension scheme but  it  is
counter-productive and runs counter to the whole gamut  of  pension  scheme.
The equal treatment guaranteed in Article 14 is wholly violated inasmuch  as
the pension rules being statutory in character, since  the  specified  date,
the rules accord differential and discriminatory treatment to equals in  the
matter of commutation of pension.  A  48  hours'  difference  in  matter  of
retirement would have a traumatic effect. Division is  thus  both  arbitrary
and unprincipled. Therefore, the classification does not stand the  test  of
Article 14.” [para 42]


33.   We were also referred to Rattan Arya and  others  v.  State  of  Tamil
Nadu and another, (1986) 3 SCC  385,  and  in  particular,  to  the  passage
reading thus:-


“We may now turn to S.30(ii) which reads as follows:

"Nothing contained in this Act shall apply to any  residential  building  or
part thereof occupied by anyone tenant if the monthly rent paid  by  him  in
respect of that building or part exceeds four hundred rupees."

By one stroke, this provision denies  the  benefits  conferred  by  the  Act
generally on all tenants to tenants  of  residential  buildings  fetching  a
rent in excess of four hundred rupees. As a result of this provision,  while
the tenant of a non-residential building is protected, whether the  rent  is
Rs. 50, Rs. 500 or Rs. 5000 per month, a tenant of  a  residential  building
is protected if the rent is Rs. 50, but not if it is Rs.  500  or  Rs.  5000
per month. Does it mean that the tenant of a residential building  paying  a
rent of Rs. 500 is better able to protect himself than the tenant of a  non-
residential building paying a rent of Rs. 5000 per month? Does it mean  that
the tenant of a residential building who pays a rent of Rs.  500  per  month
is not in need of any statutory protection?  Is  there  any  basis  for  the
distinction between the tenant of a residential building and the  tenant  of
a  non-residential  building  and  that  based  on  the  rent  paid  by  the
respective tenants? Is there any justification at all for  picking  out  the
class of tenants of residential buildings paying a rent of  more  than  four
hundred rupees per month to deny them  the |rights  conferred  generally  on
all tenants of buildings residential or non-residential by the Act?  Neither
from the Preamble of the Act nor from the provisions of the Act has it  been
possible for us even to discern any basis for  the  classification  made  by
S.30(ii) of the Act.”(Para 3)



34.   In Subramanian Swamy v. CBI, (2014) 8 SCC 682,  a  Constitution  Bench
of  this  Court  struck  down  Section  6A  of  the  Delhi  Police   Special
Establishment Act on the  ground  that  it  made  an  invidious  distinction
between employees of the Central Government of the level of Joint  Secretary
and  above  as  against  other  Government  servants.   This  Court,   after
discussing various judgments dealing with the  principle  of  discrimination
(when a classification does not  disclose  an  intelligible  differentia  in
relation to the object sought to be  achieved  by  the  Act)  from  para  38
onwards, ultimately held  that  the  aforesaid  classification  defeats  the
purpose of finding prima  facie  truth  in  the  allegations  of  graft  and
corruption against public servants generally, which is the object for  which
the Prevention of Corruption Act, 1988 was enacted.   In  paras  59  and  60
this Court held as follows:

“It seems to us that classification which is made  in  Section  6-A  on  the
basis of status in government service is not permissible  under  Article  14
as it defeats the purpose of finding prima facie truth into the  allegations
of graft, which amount to an offence under the PC Act, 1988.  Can  there  be
sound  differentiation  between  corrupt  public  servants  based  on  their
status? Surely not,  because  irrespective  of  their  status  or  position,
corrupt public servants are corrupters of public power. The  corrupt  public
servants, whether high or low, are birds of the same  feather  and  must  be
confronted with the process of investigation and inquiry equally.  Based  on
the position or status in  service,  no  distinction  can  be  made  between
public servants against whom there are allegations amounting to  an  offence
under the PC Act, 1988.

Corruption is an enemy of  the  nation  and  tracking  down  corrupt  public
servants and punishing such persons is a necessary mandate of  the  PC  Act,
1988. It is difficult to justify the classification which has been  made  in
Section 6-A because the goal  of  law  in  the  PC  Act,  1988  is  to  meet
corruption cases with a very strong hand and all public servants are  warned
through such a legislative measure that  corrupt  public  servants  have  to
face very serious consequences. In the words of Mathew,  J.  in Shri  Ambica
Mills Ltd. [State of Gujarat v. Shri Ambica Mills Ltd., (1974) 4 SCC  656  :
1974 SCC (L&S) 381 : (1974) 3 SCR 760] : (SCC p. 675, paras 53-54)
“53. The equal protection of the laws is  a  pledge  of  the  protection  of
equal laws. But laws may classify. …
54. A reasonable classification is one which includes all who are  similarly
situated and none who are not.”
Mathew, J., while explaining the meaning of the words, “similarly  situated”
stated that we must look beyond the classification to  the  purpose  of  the
law. The purpose of a  law  may  be  either  the  elimination  of  a  public
mischief  or  the  achievement   of   some   positive   public   good.   The
classification made in Section 6-A neither eliminates  public  mischief  nor
achieves some positive public good. On the other hand,  it  advances  public
mischief and protects the crimedoer. The provision thwarts  an  independent,
unhampered, unbiased, efficient and fearless inquiry/investigation to  track
down the corrupt public servants.” [paras 59 and 60]


35.   In a recent judgment, reported as  Union  of  India  v.  N.S.  Ratnam,
(2015) 10 SCC 681, this Court while dealing with an  exemption  notification
under the Central Excise Act stated the law thus:-

“We are conscious of the principle that the difference which will warrant  a
reasonable classification need not be great. However, it  has  to  be  shown
that the difference is real and substantial and there must be some just  and
reasonable  relation  to  the  object  of   legislation   or   notification.
Classification having regard to microscopic  differences  is  not  good.  To
borrow the phrase from the judgment in Roop Chand Adlakha v. DDA [1989  Supp
(1) SCC 116 : 1989  SCC  (L&S)  235  :  (1989)  9  ATC  639]  :  “To  overdo
classification is to undo equality.” [para 18]


36.   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, the words “adult male person” are contrary to the object  of
affording protection to women who have suffered from domestic  violence  “of
any kind”.  We, therefore, strike down the 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.

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 SCR 930.   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.

37.   An early application  of  the  aforesaid  principle  is  contained  in
Corporation of Calcutta v. Calcutta Tramways Co. Ltd., [1964] 5  S.C.R.  25,
in which a portion of Section 437(i)(b) of the Calcutta Municipal Act,  1951
was struck down as being a procedural provision which  was  an  unreasonable
restriction within  the  meaning  of  Article  19(6)  of  the  Constitution.
Chamarbaugwalla’s case was applied, and it was  ultimately  held  that  only
the portion in parenthesis could be struck down with the  rest  of  the  Act
continuing to apply.

38.   Similarly, in Motor General Traders v. State of  A.P.,  (1984)  1  SCC
222, Section 32(b) of the Andhra Pradesh Buildings (Lease, Rent &  Eviction)
Control Act, 1960 which exempted all  buildings  constructed  on  and  after
26.8.1957, was  struck  down  as  being  violative  of  Article  14  of  the
Constitution.  This judgment, after applying Chamarbaugwalla’s case in  para
27, and D.S. Nakara’s case in para 28, stated the law thus:-

“On a careful consideration of the above question in the light of the  above
principles we are of the view that  the  striking  down  of  clause  (b)  of
Section 32 of the Act does not in any way affect the rest of the  provisions
of the Act. The said clause is not so inextricably bound up  with  the  rest
of the Act as to make the rest of the Act unworkable after the  said  clause
is struck down. We are also of the view  that  the  Legislature  would  have
still enacted the Act in the place of the Madras Buildings (Lease  and  Rent
Control) Act, 1949 and the Hyderabad House (Rent, Eviction and  Lease)  Act,
1954 which were in force in the two areas comprised in the State  of  Andhra
Pradesh and it could not have been its  intention  to  deny  the  beneficial
effect of those laws to  the  people  residing  in  Andhra  Pradesh  on  its
formation. After the Second World War  owing  to  acute  shortage  of  urban
housing accommodation, rent control laws which were brought  into  force  in
different parts of  India  as  pieces  of  temporary  legislation  gradually
became almost permanent statutes.  Having  regard  to  the  history  of  the
legislation under review, we are  of  the  view  that  the  Act  has  to  be
sustained even after striking down clause (b) of Section 32 of the Act.  The
effect of striking down the impugned provision would be that  all  buildings
except those falling under clause  (a)  of  Section  32  or  exempted  under
Section 26 of the Act in the areas  where  the  Act  is  in  force  will  be
governed by the Act irrespective of the date of their  construction.”  [para
29]


39.   In Satyawati Sharma v. Union of  India,  (2008)  5  SCC  287,  Section
14(1)(e) of the Delhi Rent Control Act was struck down in part, inasmuch  as
it made an invidious distinction between bonafide requirement of  two  kinds
of landlords, the said ground being available for residential premises  only
and not non residential premises.  An argument was made that if the  Section
was struck down only in part, nothing more would survive  thereafter.   This
was negatived by this Court in the following words:

“In view of the above discussion, we hold that Section 14(1)(e) of the  1958
Act is violative of the doctrine of equality embodied in Article 14  of  the
Constitution of India insofar as it discriminates between the  premises  let
for residential and non-residential purposes  when  the  same  are  required
bona fide by the landlord for occupation for himself or for  any  member  of
his family dependent on  him  and  restricts  the  latter's  right  to  seek
eviction of the tenant from the premises let for residential purposes only.
However, the aforesaid declaration should  not  be  misunderstood  as  total
striking down of Section 14(1)(e) of the 1958 Act because it is neither  the
pleaded case of the parties nor the  learned  counsel  argued  that  Section
14(1)(e) is unconstitutional in its  entirety  and  we  feel  that  ends  of
justice will be met by striking down the discriminatory portion  of  Section
14(1)(e) so that the remaining part thereof may read as under:
“14. (1)(e) that the premises let  for  residential  purposes  are  required
bona fide by the landlord for occupation as a residence for himself  or  for
any member of his family dependent on him, if he is the  owner  thereof,  or
for any person for  whose  benefit  the  premises  are  held  and  that  the
landlord or such person has no other reasonably suitable accommodation;
                                    ***”
While adopting this course, we have kept in view well-recognised  rule  that
if the offending portion of a statute can be severed without doing  violence
to the remaining part thereof, then  such  a  course  is  permissible—R.M.D.
Chamarbaugwalla v. Union of India [AIR  1957  SC  628]  and Lt.  Col.  Sawai
Bhawani Singh v. State of Rajasthan[(1996) 3 SCC 105] .
As a sequel to the above, the Explanation appearing below  Section  14(1)(e)
of the 1958 Act will have to be treated as redundant.” [paras 41 – 43]


40.   An application of the aforesaid 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 Act 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 we strike down ‘adult male’, the proviso  has  no
independent existence, having been rendered otiose.

41.   Interestingly the Protection from Domestic  Violence  Bill,  2002  was
first introduced in  the  Lok  Sabha  in  2002.   This  Bill  contained  the
definition of “aggrieved person”, “relative”, and “respondent” as follows:

“2. Definitions.

In this Act, unless the context otherwise requires,-

“aggrieved person” means any woman who is or has  been  a  relative  of  the
respondent and who alleges to  have  been  subjected  to  acts  of  domestic
violence by the respondent;”

xxxx

i)    “relative” includes any person related by blood, marriage or  adoption
and living with the respondent;

j)    “respondent’ means any person who is or has been  a  relative  of  the
aggrieved person and against whom the aggrieved person has  sought  monetary
relief or has made an application for protection order to the Magistrate  or
to the Protection Officer, as the case may be; and”



42.   We were given to understand that  the  aforesaid  Bill  lapsed,  after
which  the  present  Bill  was  introduced in the Lok  Sabha  on  22.8.2005,
and was then passed by both Houses.  It is  interesting  to  note  that  the
earlier 2002 Bill defined “respondent” as meaning  “any  person  who  is…..”
without the addition of the words “adult male”,  being  in  consonance  with
the object sought to be achieved by the Bill, which was  pari  materia  with
the object sought to be achieved by the present Act.  We also find that,  in
another Act which seeks to protect women  in  another  sphere,  namely,  the
Sexual  Harassment  of  Women  at  Workplace  (Prevention,  Prohibition  and
Redressal) Act, 2013, “respondent” is defined in  Section  2(m)  thereof  as
meaning a person against whom the  aggrieved  woman  has  made  a  complaint
under Section 9.  Here again it will  be  noticed  that  the  prefix  “adult
male” is conspicuous by its absence.  The 2002 Bill and the 2013 Act are  in
tune with the object sought to be achieved by statutes which  are  meant  to
protect women  in  various  spheres  of  life.   We  have  adverted  to  the
aforesaid legislation only to show that Parliament  itself  has  thought  it
reasonable to widen the scope of the expression “respondent” in the  Act  of
2013 so as to be in tune with the object  sought  to  be  achieved  by  such
legislations.

43.   Having struck down a portion of Section 2(q) on the ground that it  is
violative of Article 14 of the Constitution of India, we do not think it  is
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.

44.   However, it still remains to deal  with  the  impugned  judgment.   We
have set out the manner in which the  impugned  judgment  has  purported  to
read down Section 2(q) of the impugned Act.  The doctrine  of  reading  down
in constitutional adjudication is well settled and has been reiterated  from
time to time in several judgments, the most recent of which is contained  in
Cellular Operators Association of India v. TRAI, (2016) 7 SCC 703.   Dealing
with the doctrine of reading down, this Court held:-

“But it was said that the aforesaid Regulation should be read down  to  mean
that it would apply only when the fault is that of the service provider.  We
are afraid that such a course is not open to us  in  law,  for  it  is  well
settled that the doctrine of reading down  would  apply  only  when  general
words used in a statute or  regulation  can  be  confined  in  a  particular
manner so  as  not  to  infringe  a  constitutional  right.  This  was  best
exemplified in one of the earliest judgments dealing with  the  doctrine  of
reading down, namely, the judgment of the  Federal  Court  in Hindu  Women's
Rights to Property Act, 1937, In re [Hindu Women's Rights to  Property  Act,
1937, In re, 1941 SCC OnLine FC 3 : AIR 1941 FC 72] . In that judgment,  the
word “property” in Section 3 of the Hindu Women's  Rights  to  Property  Act
was read down so as  not  to  include  agricultural  land,  which  would  be
outside the Central Legislature's powers under the Government of India  Act,
1935. This is done because it is  presumed  that  the  legislature  did  not
intend to transgress constitutional limitations. While so reading  down  the
word “property”, the Federal Court held: (SCC OnLine FC)
“… If the restriction of the general words to purposes within the  power  of
the legislature would be to leave an Act with nothing or next to nothing  in
it, or an Act different in kind, and not merely in degree, from  an  Act  in
which the general words were given the wider meaning, then it is plain  that
the Act as a whole must be held invalid, because in  such  circumstances  it
is impossible to assert with any confidence that  the  legislature  intended
the general words which it has used to be construed  only  in  the  narrower
sense: Owners  of  SS  Kalibia v.Wilson [Owners  of  SS   Kalibia v. Wilson,
(1910) 11 CLR 689 (Aust)] , Vacuum Oil Co.  Pty.  Ltd. v. Queensland [Vacuum
Oil   Co.   Pty.   Ltd. v. Queensland,   (1934)   51   CLR    677    (Aust)]
, R. v. Commonwealth Court of Conciliation and Arbitration, ex p  Whybrow  &
Co. [R. v. Commonwealth Court of Conciliation and Arbitration, ex p  Whybrow
& Co., (1910) 11 CLR 1 (Aust)] and British Imperial Oil  Co.  Ltd. v.Federal
Commr. of Taxation [British  Imperial  Oil  Co.  Ltd. v. Federal  Commr.  of
Taxation,       (1925)       35       CLR       422        (Aust)]        .”
(emphasis supplied)

This  judgment  was  followed  by  a  Constitution  Bench  of   this   Court
in DTC v.Mazdoor Congress [DTC v. Mazdoor Congress, 1991 Supp (1) SCC 600  :
1991 SCC (L&S) 1213] . In that case,  a  question  arose  as  to  whether  a
particular regulation which conferred power on  an  authority  to  terminate
the services of a permanent and  confirmed  employee  by  issuing  a  notice
terminating his services, or by  making  payment  in  lieu  of  such  notice
without assigning any reasons and without any opportunity of hearing to  the
employee, could be said to  be  violative  of  the  appellants'  fundamental
rights. Four of the learned Judges who heard the  case,  the  Chief  Justice
alone dissenting on this aspect, decided that the regulation cannot be  read
down, and must, therefore, be held  to  be  unconstitutional.  In  the  lead
judgment on this aspect by Sawant, J., this Court stated: (SCC  pp.  728-29,
para 255)
“255. It is thus clear that the doctrine of reading  down  or  of  recasting
the statute can be applied in limited situations. It  is  essentially  used,
firstly, for saving a statute from being  struck  down  on  account  of  its
unconstitutionality. It is an extension  of  the  principle  that  when  two
interpretations are possible—one rendering it constitutional and  the  other
making  it  unconstitutional,  the   former   should   be   preferred.   The
unconstitutionality  may  spring  from  either  the  incompetence   of   the
legislature to enact the statute  or  from  its  violation  of  any  of  the
provisions of the Constitution. The second situation which summons  its  aid
is where the provisions of the statute are vague and  ambiguous  and  it  is
possible to gather the intention of the legislature from the object  of  the
statute, the context in which the  provision  occurs  and  the  purpose  for
which it is made. However, when the provision is  cast  in  a  definite  and
unambiguous language and its intention  is  clear,  it  is  not  permissible
either to mend or bend it even if such recasting  is  in  accord  with  good
reason and conscience. In such circumstances, it is  not  possible  for  the
court to remake the statute. Its only duty is to strike it  down  and  leave
it to the legislature if it so desires, to amend it.  What  is  further,  if
the remaking of the statute by the courts is to lead to its distortion  that
course is to be scrupulously avoided. One of the  situations  further  where
the doctrine can never be called into play is  where  the  statute  requires
extensive additions and deletions. Not only it is no  part  of  the  court's
duty to undertake such exercise, but it is beyond  its  jurisdiction  to  do
so. (emphasis supplied)” [paras 50 and 51]


45.   We may add  that  apart  from  not  being  able  to  mend  or  bend  a
provision, this Court  has  earlier  held  that  “reading  up”  a  statutory
provision is equally not permissible.  In  B.R.  Kapur  v.  State  of  T.N.,
(2001) 7 SCC 231, this Court held:

“Section 8(4) opens with the words “notwithstanding anything in  sub-section
(1), sub-section (2) or sub-section (3)”, and it  applies  only  to  sitting
members of Legislatures. There is no challenge to it on the  basis  that  it
violates Article 14. If there were, it might  be  tenable  to  contend  that
legislators stand in a class apart from  non-legislators,  but  we  need  to
express no final opinion. In any case, if it were found to be  violative  of
Article 14, it would be struck down in its entirety. There would be, and  is
no question of so reading it that its provisions apply to  all,  legislators
and non-legislators, and that, therefore, in all cases the  disqualification
must await affirmation of the conviction and  sentence  by  a  final  court.
That would be “reading up” the provision, not “reading down”,  and  that  is
not known to the law.” [para 39]

46.   We, therefore, set aside the impugned  judgment  of  the  Bombay  High
Court and declare 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.  We  may  only  add  that  the
impugned judgment has  ultimately  held,  in  paragraph  27,  that  the  two
complaints of 2010, in which the three female  respondents  were  discharged
finally, were purported to be revived, despite  there  being  no  prayer  in
Writ Petition No.300/2013 for the same.  When  this  was  pointed  out,  Ms.
Meenakshi Arora very fairly stated that she  would  not  be  pursuing  those
complaints, and would be content to have a declaration from  this  Court  as
to the constitutional validity  of  Section  2(q)  of  the  2005  Act.   We,
therefore, record the statement of the learned counsel,  in  which  case  it
becomes clear that nothing survives in the aforesaid complaints of  October,
2010.  With this additional observation, this appeal stands disposed of.

                                        ……………………J.

                                        (Kurian Joseph)





                                        ……………………J.

New Delhi;                              (R.F. Nariman)

October 6, 2016.



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