Crl. M.C. 725/2011 Page 1 of 10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. M.C. No. 725/2011 & Crl. M.A. No.2797/2011 (Stay)
% Reserved on: 19
th
July, 2011
Decided on: 2
nd
September, 2011
KUSUM LATA SHARMA ..... Petitioner
Through: Mr. Atul Verma, Advocate
versus
STATE & ANR. ..... Respondents
Through: Mr. Pawan Bahl, APP for the State
Mr. M.S. Jadhav, Adv. for R-2.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. Whether the Reporters of local papers may Not Necessary
be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
MUKTA GUPTA, J.
1. The Petitioner, one of the Respondents in a Complaint Case No.
40/2011, PS Hauz Khas, New Delhi titled as “Ms. Shakuntala Sharma vs.
Nagender Vashishtha & Ors” received summons from the Court of learned
Metropolitan Magistrate under Section 12 of the Protection of Women from Crl. M.C. 725/2011 Page 2 of 10
Domestic Violence Act, 2005(in short the „Act‟) to appear on 8
th
March, 2011.
The Petitioner states that the Complainant/Respondent No. 2 is her mother-inlaw who is having property dispute with the Petitioner‟s husband since 2005
and in order to coerce the Petitioner‟s husband to forego his share in the
property left behind by Petitioner‟s father-in-law, the Respondent no.2 has
filed the complaint.
2. It is contended that the object of the Act was for redressal of married
women who were subjected to cruelty by their husband or in-laws. The object
of the Act clearly states that it does not enable any relative of the husband or
the male partner to file a complaint against the wife or the female partner.
Thus in a nutshell the contention is that a mother-in-law cannot take recourse
to the proceedings under Section 12 of the Act to file a complaint against the
daughter-in-law.
3. The learned counsel for the Petitioner relies upon the object of the Act
and contends that as per para „2‟ and „4‟ of the Statements of Objects &
Reasons of the Act, the Act was enacted to address to the phenomena of
cruelty inflicted under Section 498A IPC in its entirety. It is further
contended that as per Section 2, the Respondent means any adult male person
who is or has been in a relationship with the aggrieved person and against
whom any relief has been sought under this Act. The proviso to Section 2(q) Crl. M.C. 725/2011 Page 3 of 10
which provides that an aggrieved wife or female living in a relationship in the
nature of marriage may also file a complaint against a relative or the husband
or the male partner does not include a female relative.
4. The issue whether the „females‟ are included or not in the definition of
„Respondent‟ in Section 2(q) of the Act came up for consideration before the
Hon‟ble Supreme Court in Sou. Sandhya Manoj Wankhade vs. Manoj
Bhimrao Wankhade & Ors., 2011 (3) SCC 650 wherein their Lordships held:-
13. It is true that the expression "female" has not been used in the
proviso to Section 2(q) also, but, on the other hand, if the
Legislature intended to exclude females from the ambit of the
complaint, which can be filed by an aggrieved wife, females would
have been specifically excluded, instead of it being provided in the
proviso that a complaint could also be filed against a relative of the
husband or the male partner. 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.
14. 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.
15. In our view, both the Sessions Judge and the High Court went
wrong in holding otherwise, possibly being influenced by the
definition of the expression "Respondent" in the main body of
Section 2(q) of the aforesaid Act.
16. The Appeal, therefore, succeeds. The judgments and orders,
both of the learned Sessions Judge, Amravati, dated 15
th
July, 2009
and the Nagpur Bench of the Bombay High Court dated 5
th
March,
2010, in Crl. Writ Petition No. 588 of 2009 are set aside. Crl. M.C. 725/2011 Page 4 of 10
Consequently, the trial Court shall also proceed against the said
Respondent Nos. 2 and 3 on the complaint filed by the Appellant”
5. Division Bench of this Court in “Varsha Kapoor vs. UOI & Ors. 2010
VI AD(Delhi) 472 interpreting Section 2(q) of the Act also came to the same
conclusion. Thus the issue whether under Section 2(q) of the Act “the female
relative” would be inclusive in the definition is no more res integra. The
Division Bench held as under:-
“12. When we interpret the provisions of Section 2 (q) in the
context of the aforesaid scheme, our conclusion would be that the
petition is maintainable even against a woman in the situation
contained in proviso to Section 2(q) of the DV Act. No doubt, the
provision is not very satisfactorily worded and there appears to
be some ambiguity in the definition of „respondent‟ as contained
in Section 2 (q). The Director of Southern Institute for Social
Science Research, Dr. S.S. Jagnayak in his report has described
the ambiguity in Section 2(q) as “Loopholes to Escape the
Respondents from the Cult of this Law” and opined in the
following words:
“As per Section 2 Clause (q) the respondent means any
adult male person who is or has been in a domestic
relationship. Hence, a plain reading of the Act would
show that an application will not lie under the
provisions of this Act against a female. But, when
Section 19(1) proviso is perused, it can be seen that the
petition is maintainable, even against a lady. Often this
has taken as a contention, when ladies are arrayed as
respondents and it is contended that petition against
female respondents are not maintainable. This is a
loophole which should be plugged.”
13. But then, Courts are not supposed to throw their hands up in
the air expressing their helplessness. It becomes the duty of the
Court to give correct interpretation to such a provision having Crl. M.C. 725/2011 Page 5 of 10
regard to the purpose sought to be achieved by enacting a
particular legislation. This so expressed by the Supreme Court in
the case of Ahmedabad Municipal Corpn. Anr. Vs. Nilaybhai R.
Thakore & Anr. [(1999) 8 SCC 139 in the following words:
“14. Before proceeding to interpret Rule 7 in the
manner which we think is the correct interpretation, we
have to bear in mind that it is not the jurisdiction of the
court to enter into the arena of the legislative
prerogative of enacting laws. However, keeping in
mind the fact that the Rule in question is only a
subordinate legislation and by declaring the Rule ultra
vires, as has been done by the High Court, we would
be only causing considerable damage to the cause for
which the Municipality had enacted this Rule. We,
therefore, think it appropriate to rely upon the famous
and oft-quoted principle relied by Lord Denning in the
case of Seaford Court Estates Ltd. v. Asher [1994] 2
All ER 155 wherein he held : "When a defect appears a
judge cannot simply fold his hand and blame the
draftsman. He must set to work on the constructive
task of finding the intention of Parliament and then he
must supplement the written words so as to give 'force
and life' to the intention of the Legislature. A judge
should ask himself the question how, if the makers of
the Act had themselves come across this ruck in the
texture of it, they would have straightened it out? He
must then do as they would have done. A judge must
not alter the material of which the Act is woven, but he
can and should iron out the creases". This statement of
law made by Lord Denning has been consistently
followed by this Court starting in the case of M.
Pentiah and Ors. v. Muddala Veeramallappa and Ors. :
[1961]2SCR295 and followed as recently as in the case
of S. Gopal Reddy v. Slate of Andhra Pradesh :
1996CriLJ3237 . Thus, following the above Rule of
interpretation and with a view to iron out the creases in
the impugned Rule which offends Article 14, we
interpret Rule 7 as follows : "Local student means a
student who has passed H.S.C./New S.S.C. Crl. M.C. 725/2011 Page 6 of 10
examination and the qualifying examination from any
of the High Schools or Colleges situated within the
Ahmedabad Municipal Corporation limits and includes
a permanent resident student of Ahmedabad
Municipality who acquires the above qualifications
from any of the High School or College situated within
Ahmedabad Urban Development Area."
14. This Court also followed the aforesaid principles in the case
of Star India P. Ltd. Vs. The Telecom Regulatory Authority of
India and Ors. [146 (2008) DLT 445 (DB) in the following
words:
“28. It is also a firmly entrenched principle of
interpretation of statutes that the Court is obliged to
correct obvious drafting errors and adopt the
constructive role of 'finding the intention of
Parliament... not only from the language of the statute,
but also from a consideration of the social conditions
which gave rise to it' as enunciated in State of Bihar v.
Bihar Distillery Ltd.: AIR1997SC1511 . The Court
should also endeavor to harmoniously construe a
statute so that provisions which appear to be
irreconcilable can be given effect to, rather than strike
down one or the other. It must also not be forgotten
that jural presumption is in favor of the
constitutionality of a statute.”
15. Having regard to the purpose which the DV Act seeks to
achieve and when we read Section 2 (q) along with other
provisions, out task is quite simple, which may in first blush
appear to be somewhat tricky. We are of the considered view that
the manner in which definition of „respondent‟ is given under
Section 2(q) of DV Act, it has to be segregated into two
independent and mutually exclusive parts, not treating proviso as
adjunct to the main provision. These two parts are:
a) Main enacting part which deals with those aggrieved
persons, who are „in a domestic relationship‟. Thus, in
those cases where aggrieved person is in a domestic Crl. M.C. 725/2011 Page 7 of 10
relationship with other person against whom she has
sought any relief under the DV Act, in that case, such
person as respondent has to be an adult male person.
Given that aggrieved person has to be a female, such
aggrieved person in a domestic relationship can be a
mother, a sister, a daughter, sister-in-law, etc.
b) Proviso, on the other hand, deals with limited and
specific class of aggrieved person, viz. a wife or a
female living in relationship in the nature of marriage.
First time by this legislation, the legislator has
accepted live in relationship by giving those female
who are not formally married, but are living with a
male person in a relationship, which is in the nature of
marriage, also akin to wife, though not equivalent to
wife. This proviso, therefore, caters for wife or a
female in a live in relationship. In their case, the
definition of „respondent‟ is widened by not limiting it
to „adult male person‟ only, but also including „a
relative of husband or the male partner‟, as the case
may be.
What follows is that on the one hand, aggrieved persons other
than wife or a female living in a relationship in the nature of
marriage, viz., sister, mother, daughter or sister-in-law as
aggrieved person can file application against adult male person
only. But on the other hand, wife or female living in a
relationship in the nature of marriage is given right to file
complaint not only against husband or male partner, but also
against his relatives.
16. Having dissected definition into two parts, the rationale for
including a female/woman under the expression „relative of the
husband or male partner‟ is not difficult to fathom. It is common
knowledge that in case a wife is harassed by husband, other
family members may also join husband in treating the wife
cruelty and such family members would invariably include
female relatives as well. If restricted interpretation is given, as
contended by the petitioner, the very purpose for which this Act
is enacted would be defeated. It would be very easy for the Crl. M.C. 725/2011 Page 8 of 10
husband or other male members to frustrate the remedy by
ensuring that the violence on the wife is perpetrated by female
members. Even when Protection Order under Section 18 or
Residence Order under Section 19 is passed, the same can easily
be defeated by violating the said orders at the hands of the female
relatives of the husband.
19. It is also well-recognized principle of law that while
interpreting a provision in statute, it is the duty of the Court to
give effect to all provisions. When aforesaid provisions are read
conjointly keeping the scheme of the DV Act, it becomes
abundantly clear that the legislator intended female relatives also
to be respondents in the proceedings initiated by wife or female
living in relationship in the nature of marriage.”
6. The next issue which arises for consideration is whether the word
„aggrieved person‟ in Section 2(a) of the Act has to be given a restricted
meaning in view of the Statement of Objects & Reasons so as to include the
daughter-in-law only and excludes only a mother-in-law, sister-in-law or
daughter from its ambit. The relevant Sections read as under:-
“2(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;
(b)…………………..
(c)…………………..
(d)………………….
(e)………………….
(f) “domestic relationship” means a relationship between two
persons who live or have, at any point of time, lived together in a Crl. M.C. 725/2011 Page 9 of 10
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;”
7. Thus, a perusal of Section 2(a) and 2(f) of the Act shows that any
woman who is in a domestic relationship, the said domestic relationship being
one between two persons who lived at any point of time together in a shared
household related by consanguinity, marriage or through a relationship in the
nature of marriage, adoption or family members living as a joint family and
alleges that she has been subjected to any domestic violence by the
Respondent is entitled to relief under the Act.
8. The word „aggrieved person‟ cannot be given a restricted meaning in
view of para „2‟ of the Statement of Objects & Reasons which states that:-
“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.
Thus, it is evident that phenomenon which was sought to be addressed was
“domestic violence” and not “domestic violence qua the daughter-in-law or
the wife only as contemplated under Section 498A.
9. As a matter of fact, para „4(i)‟ clarifies that even those women who are
sisters, widows, mothers, single woman or living with the abuser are entitled Crl. M.C. 725/2011 Page 10 of 10
to legal protection under the proposed legislation. A mother who is being
maltreated and harassed by her son would be an “aggrieved person”. If the
said harassment is caused through the female relative of the son i.e. his wife,
the said female relative will fall within the ambit of the „respondent‟. This
phenomenon of the daughters-in-law harassing their mothers-in-law especially
who are dependent is not uncommon in the Indian society.
10. In view of the authoritative pronouncement of the Hon‟ble Supreme
Court, para „4‟ of the Statement of Objects and Reasons cannot be stated to
have excluded a female relative of the male partner or a respondent and thus, a
mother-in-law being an “aggrieved person” can file a complaint against the
daughter-in-law as a respondent.
11. Thus, I find that no case for quashing of the complaint is made out.
Petition and application are dismissed.
(MUKTA GUPTA)
JUDGE
SEPTEMBER 02, 2011
vkm
