WP(Crl.) No.638 of 2010 Page 1 of 25 REPORTABLE * IN THE HIGH COURT OF DELHI AT NEW DELHI WP (Crl.) No. 638 of 2010 Reserved On: May 28, 2010. % Pronounced On: June 03, 2010. VARSHA KAPOOR . . . Petitioner through : Mr. Arvind Jain with Mr. T.S. Chaudhary, Advocates. VERSUS UOI & ORS. . . .Respondent through: Mr. A.S. Chandhiok, ASG with Mr. Pratap Singh Parmar and Mr. Puneet Khurana, Advocates for UOI. Mr. Sanjeev Bhandari, Addl. S.C. (Crl.) for the respondent No.3/State. Mr. Shashank Rai, Advocate for the respondent No.4. Mr. Ravindra S. Garia, with Ms. Samridhi Sinha, Advocates for the interveners. CORAM :- HON’BLE MR. JUSTICE A.K. SIKRI HON’BLE MR. JUSTICE AJIT BHARIHOKE 1. Whether Reporters of Local newspapers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? 3. Whether the Judgment should be reported in the Digest? A.K. SIKRI, J. 1. The petitioner herein is the mother-in-law of the respondent No.4. The respondent No.4 has instituted proceedings in the Court of Metropolitan Magistrate (Mahila Court South), New Delhi under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as „DV Act‟). In this application, the respondent No.4 has impleaded her husband as respondent No.1 and one Rakesh Dhawan as WP(Crl.) No.638 of 2010 Page 2 of 25 respondent No.3. Her mother-in-law has been arrayed as the respondent No.2 (the petitioner herein). Allegations of domestic violence perpetrated by her husband and mother-in- law are levelled on the basis of which the respondent No.4 has sought protection order under Section 18, Residence Order under Section 19 and Monetary Relief under Section 20 as well as Compensation Order under Section 22 of the DV Act. 2. Notice in this Application filed by the respondent No.4 has been issued by the Mahila Court to all the respondents and the petitioner has also received the said notice in her capacity as respondent No.2/mother-in-law. On receipt of this notice, she has rushed to this Court by means of the present writ petition, as her contention is that being a lady, she cannot be impleaded as the respondent in the said proceedings. Her submission flows from Section 2(q) of the DV Act, which defines „respondent‟. Contention is that the said definition includes only „adult male person‟. It is also the case of the petitioner that in case proviso to Section 2 (q) is interpreted including „female‟ also as the respondent, then such a provision is ultra vires the Constitution of India. We may add at this stage itself that though the prayer clause in the writ petition contains challenge to the vires of Section 2(q) of the DV Act as well, at the time of hearing, no arguments were advanced thereon. 3. Section 2 (q) of the DV Act reads as under: “2(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: WP(Crl.) No.638 of 2010 Page 3 of 25 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.” 4. In nutshell, the submission is that the main provision of Section 2 (q), which defines „respondent‟, specifically states that it would mean any „adult male person‟. However, proviso to this provision which carves out specific category of „aggrieved person‟ viz. a wife or a female living in a relationship in the nature of a marriage, it stipulates that complaint by such aggrieved wife or female can file a complaint against „a relative of the husband or the male partner‟ as well. It is argued that the expression „a relative‟ would be circumscribed by adult male person and therefore, such a relative as mentioned in the proviso could only be an adult male person and would not include a female relative. 5. The argument is premised on the following: (a) The preamble as well as object and reasons of the DV Act clearly demonstrates that the DV Act is passed to give redressal to females who suffer domestic violence at the hands of male persons. It is, thus, gender based violence, which is the focus of the DV Act. When purpose is to redress this gender based violence, the respondent, by necessary implication, can only be a male person, who subjects a woman to domestic violence. The learned counsel highlighted in this behalf that violence constitutes a major form and process of oppression of women. An understanding of gender reality over the years reveals how WP(Crl.) No.638 of 2010 Page 4 of 25 violence has always been used as a means to subjugate women and keep them in a position of subordination. Gender based violence may take many different forms and there may be distinctive patterns or manifestations of gender violence associated with particular communities, cultures or regions and historical epochs. Gender violence is present in all societies; it is a structural phenomenon embedded in the context of culture, socio-economic and emotional dependency, the property of some male protector. Societies organized around gendered, hierarchical power relation give legitimacy to violence against women. Violence against women, like all other historical manifestation of violence, is embedded in the socio-economic and political context of power relations. It is produced within class, caste and patriarchal social relations in which male power dominates. A narrow definition of violence may define it as an act of criminal use of physical force. But this is an incomplete definition. Violence also includes exploitation, discrimination, upholding of unequal economic and social structures, the creation of an atmosphere of terror, threat, or reprisal and forms of religio-culture. Thus, it is the submission of the learned counsel that when the object and purpose, which the legislature seeks to achieve is to provide mechanism for preventing domestic violence perpetrated by male persons, and is, thus, gender based, necessary corollary would be that the term „a relative‟ WP(Crl.) No.638 of 2010 Page 5 of 25 contained in the proviso would mean only „adult male person‟ as respondent. (b) Learned counsel proceeded to buttress his aforesaid submission by arguing that the main provision categorically limits the category of „respondent‟ within the confines of „adult male person‟. Once that is the clear and categorical definition provided to the term „respondent‟ in the main provision, the proviso has to take colour therefrom inasmuch as it cannot expand or limit the scope of the main provision. The petitioner has relied upon the judgment of the Supreme Court in the case of Dwarka Parsad Vs. Dwarka Das Saraf [AIR 1975 SC 1758], where following principle of law is laid down while interpreting a proviso: “…If on a fair construction, the principle provision is clear, a proviso canto expand or limit it. A proviso must be limited to the subject matter of the enacting clause. A proviso must prima facie be read and considered in relation to the principle matter to which it is a proviso. It is not a separate or independent enactment.” (c) Submission in the alternate, as pointed out above, was that if relative includes female, as per the proviso, then such a provision is ultra vires Article 15 (3) of the Constitution of India. It is argued that the said provision enables the Parliament to make law for the welfare of women and such a law cannot be for protection of one woman against other woman. Therefore, this provision would not withstand the concept of reasonableness and would be arbitrary and thus violative of Article 14and 15of the Constitution of India. WP(Crl.) No.638 of 2010 Page 6 of 25 6. Mr. A.S. Chandhiok, learned ASG appeared for Union of India. Mr. Sanjeev Bhandari, ASC appeared for the respondent No.3/Govt. of NCT OF Delhi. Mr. Shashank Rai, learned counsel represented the respondent No.4 while Mr. Ravindra S. Garia, learned counsel appeared for interveners/NGO, which was allowed to intervene and make submission. All the counsel countered the submissions of the learned counsel for the petitioner. 7. The purpose with which the DV Act was enacted hardly needs to be emphasized. In fact, that is accepted even by the petitioner. The Statement of the Objects and Reasons of the Act states that: “Domestic violence is undoubtedly a human rights issue and serious deterrent to development. The Vienna Accord of 1994 and Beijing Declaration and Platform for Action (1955) have acknowledged this. The United Nations Committee on Convention on Elimination of All Forms of Discrimination 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. 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 Indian Penal Code. However, the civil law does not address this phenomenon in its entirety. It is, therefore, proposed to enact a law keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution of India to provide for a remedy under civil law, which is intended to protect the women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.” 8. It is also accepted position between the parties that the Statue is a special benevolent piece of legislation aimed to provide for more effective protection of rights of women guaranteed under the Constitution, who are victims of violence of any kind occurring within the family and for matters connected WP(Crl.) No.638 of 2010 Page 7 of 25 therewith or incidental thereto. It would not be out of place to mention at this stage itself that vires of the entire DV Act were challenged by means of a petition filed in this Court, which challenge was emphatically repelled. It happened in the case of Aruna Parmod Shah Vs. Union of Indian (Writ Petition (Crl.) No.425 of 2008). While dismissing challenge to the constitutionality of the aforesaid Act, the Division Bench of this Court made the following pertinent observations: “What Article 14 of the Constitution prohibits is „class legislation‟ and not „classification for purpose of legislation‟. If the legislature reasonably classifies persons for legislative purposes so as to bring them under a well-defined class, it is not open to challenge on the ground of denial of equal treatment that the law does not apply to other persons. The test of permissible classification is twofold: (i) that the classification must be founded on intelligible differential which distinguishes persons grouped together from others who are left out of the group, and (ii) that differential must have a rational connection to the object sought to be achieved. Article 14 does not insist upon classification, which is scientifically perfect or logically complete. A classification would be justified unless it is patently arbitrary. If there is equality and uniformity in each group, the law will not become discriminatory; though due to some fortuitous circumstance arising out of (sic) peculiar situation some included in a class get an advantage over others so long as they are not singled out for special treatment. In substance, the differential required is that it must be real and substantial, bearing some just and reasonable relation to the object of the legislation. Domestic Violence is a worldwide phenomenon and has been discussed in International for a, including the Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995). The United Nations Committee Convention on Elimination of All Forms of Discrimination against Women (CEDAW) has recommended that States should act to protect women against violence of any kind, especially that occurring within the family. There is a perception, not unfounded or unjustified, that the lot and fate of women in India is an abjectly dismal one, which requires bringing into place, on an urgent basis, protective and ameliorative measures against exploitation of women. The argument that the Act is ultra vires the Constitution of India because it accords protection only to women and not to men is therefore, wholly devoid of any merit. We do not rule out the possibility of a man becoming the victim of domestic violence, but such cases would be few and far between, thus not requiring or justifying the protection of parliament.” WP(Crl.) No.638 of 2010 Page 8 of 25 9. Keeping in mind that the DV Act has been held to be a valid piece of legislation giving power to the Parliament having regard to the provisions of Article 15 (3) of the Constitution which gives power to the Parliament to make such a law and thus, it is not ultra vires the legislative power of the Parliament, we proceed to determine the tow issues posed before us, viz., interpretation of Section 2(q) and constitutional validity thereof. Re: Interpretation of Section 2(q): 10. The first task is to examine the scope of the definition of the term „respondent‟ as defined in Section 2 (q), particularly proviso thereof which includes a relative of the husband or the male partner as well who could be the respondent. Discussion in this behalf has to start with the definition of „aggrieved person‟ as provided under Section 2 (q) of DV Act inasmuch as it is that aggrieved person who is permitted to file application and initiate proceedings under various provisions of the Act. Section 2 (a) reads 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.” 11. We would also take note of Section 12, 19 and 31 of DV Act as conjoint reading of all these Sections form the basis of redressal machinery provided to the aggrieved person in the scheme of the DV Act. These provisions read as under: “12. Application to Magistrate.- (1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act: WP(Crl.) No.638 of 2010 Page 9 of 25 Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider. (2) The relief sought for under sub –Section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent: Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree, shall notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off. (3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto. (4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the Court. (5) The Magistrate shall endeavour to dispose of every application made under sub-Section (1) within a period of sixty days from the date of its first hearing. 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 off 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: WP(Crl.) No.638 of 2010 Page 10 of 25 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 pero0n 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 officer5-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. 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 extent 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 charge 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.” 12. When we interpret the provisions of Section 2 (q) in the context of the aforesaid scheme, our conclusion would be that the WP(Crl.) No.638 of 2010 Page 11 of 25 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 go give correct interpretation to such a provision having 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 WP(Crl.) No.638 of 2010 Page 12 of 25 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. 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,