THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL PETITION Nos. 346 of 2009 and 7978 of 2009 COMMON ORDER: 1. The Union Parliament has plenary power of legislation within the field of legislation committed to it, and subject to certain constitutional restrictions, it can legislate an Act to operate prospectively as well as retrospectively. It is, however, a cardinal principle of construction that every statute is prima facie prospective, unless it is expressly or by necessary implication, made to have retrospective operation. 2. The Protection of Women from Domestic Violence Act, 2005 (Act 43 of 2005) (for short, hereinafter referred to as ‘the Domestic Violence Act, 2005’) was enacted keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution of India 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. The World Conference of Human Rights held in Vienna in 1993 and the declaration on elimination of violence against women in the same year, concluded that civil society and the Governments have acknowledged that violence against women is a public health and human rights concern. Therefore, to provide for more effective protection of rights of women, who are victims of violence of any kind occurring within the family, guaranteed under the Constitution, and for the matters concerned thereto or incidental thereto, the Domestic Violence Act, 2005 has been passed. In exercise of powers conferred by sub- section (3) to Section 1 of the Domestic Violence Act, 2005, the Central Government appointed 26th day of October, 2006 as the date on which the provisions of the said Act came into force. Every modern legislation is initiated with some goals and objectives and speaking broadly has some beneficial purpose and reason. Whether the legislation made by the Parliament is ‘prospective’ or ‘retrospective’ in operation, is the question to be decided in these two Criminal Petitions. 3. For sake of convenience, the parties are hereinafter referred to as they are arrayed in the respective D.V.Cs. 4. Criminal Petition No.346 of 2009 is filed to quash all further proceedings in D.V.C. No.163 of 2008 on the file of the Principal Judicial Magistrate of First Class, Mancherial, whereas, Criminal Petition No.7978 of 2009 is filed to quash the proceedings in D.V.C. No.10 of 2009 on the file of the I Additional Munsif Magistrate, Tenali, Guntur district. 5. Shorn of unnecessary details, the brief facts that are necessary for disposal of Criminal Petition No.346 of 2009 may be stated as follows: Petitioner no.1 married the first respondent on 29.12.2003, which was registered at Nagpur, and again the marriage ceremony was performed on 28.1.2004 at Hyderabad, and thereafter she was taken to Australia by the respondent no.1 on 20.2.2004 and they lived together in Australia for about two months and thereafter she returned to India. Once again, she went back to Australia in September, 2004 and stayed with the respondent no.1 till May, 2005 and later she came back to India along with her husband by which time she was pregnant. Again, on 22.6.2005, the couple went to Australia and a baby was born to the petitioner no.1 on 29.06.2005. The allegation against the respondents is that from the beginning of the marriage life, the petitioner no.1 was ill- treated and insulted by the respondents, demanding to bring more money from her parents and in Australia also, both the respondents gave physical and mental torture to her and therefore the petitioner no.1 and her child left the house and approached Australian police. Thereafter, the petitioners filed a petition on 16.12.2008 before the Judicial Magistrate of First Class, Mancherial under Section 12 of the Domestic Violence Act, 2005 to grant certain reliefs as mentioned therein, which was taken on file as D.V.C. NO.163 of 2008. 6. Similarly, the brief facts that are necessary for disposal of Criminal Petition No.7978 of 2009 may be stated as follows: Petitioner no.1 is wife of respondent no.1; respondents 2 and 3 are parents, and respondents 4 and 5 are elder brothers, of respondent no.1; respondent no.6 is the wife, and respondent no.7 is the sister, of respondent no.1; and respondent no.8 is husband of respondent no.7. It is alleged that, marriage of petitioner no.1 with the respondent no.1 took place at Gattavari Kalyana Mandapam, Kanyaka Parameswari Devasthanam, Tenali according to hindu rites and customs. The petitioner no.1 married the respondent no.1 without taking any dowry and cash. They lived happily for a short period and thereafter the respondent no.1, with the instigation of respondents 2 to 8, used to abuse the petitioner no.1 in vulgar language and subjecting her to cruelty demanding to bring additional dowry. Further, the respondent no.1 was addicted to vices and used to come to house late night, and all the respondents did not provide food to petitioners. All the respondents hatched up a plan and attempted to kill her by releasing gas, and respondent no.1, in a drunken state, tried to kill her by pressing her neck. The respondents have not heeded the advice given by elders. Even after a family counseling, the respondents did not change their attitude. Hence, the petitioners filed the complaint under Section 12 of the Domestic Violence Act, 2005, and the same was taken on file as D.V.C. No.10 of 2009. 7. Sri K. Sadasiva Reddy, learned counsel appearing for the petitioners in Criminal Petition No.346 of 2009 contended that, the Domestic Violence Act, 2005 came into force with effect from 26.10.2006 and all the allegations with regard to domestic violence alleged in the complaint, were allegedly occurred prior to the Act came into force; that, the language used in the Act would clearly establish that it would apply prospectively and therefore continuation of the proceedings against the petitioners is nothing but abuse of process of court. 8. The learned counsel appearing for the petitioners in Criminal Petition No.346 of 2009 placed strong reliance on a decision in K.Ramaraju v. K.Lakshmi Pratima & another,[1] wherein it is held thus: “.. The same needs no expression of opinion herein, as the first respondent claims herein to be prohibited from having shelter in the shared household before and after coming into force of the Act and even after filing of the petition. She also claims to be deprived of any economic resources to which she is entitled under law or custom payable even otherwise under the order of the Court by way of liability of the husband to maintain her both before and after the Act up-to-date. Such deprivation and prohibition fall within the meaning of clauses (a) and (c) respectively of economic abuse as defined in Explanation-I Section 3(iv) of the Act. Section 3 defining domestic violence for the purposes of this Act includes any act or omission or commission or conduct of the respondent as constituting domestic violence in case of any harm or injury to the aggrieved person including economic abuse. While not going into the truth or otherwise of the allegations made by the first respondent at different stages, it has to be noted that ex-facie her allegations constituted allegations of economic abuse amounting to domestic violence committed by the petitioner and his son before and after commencement of the Act also and continuing uptodate. ..” In the above decision, no finding has been given by the learned single Judge of this Court as to whether the Domestic Violence Act, 2005 is retrospective or prospective in operation. 9. Smt. M.S.Tirumala Rani, the learned counsel appearing for the petitioners in Criminal Petition No.7978 of 2009 contended that, the acts of domestic violence allegedly took place long prior to the Domestic Violence Act, 2005 came into force and hence she prays to quash the complaint as it is nothing but abuse of process of Court. 10. The learned counsel relied on the following decisions in support of her contention. (a) In Shri Banwari Dass v. Shri Sumer Chand & others[2], wherein it is held thus: (para 15) “In the instant case also, if the phrase ‘found to have been guilty’ in Section 9(1) (d) is construed in the context of clause (a) of Section 17(1), then on the analogy of Re Storie (supra), it will mean ‘found to have been guilty at the time of election, and immediately preceding the election’.” Because the above interpretation fits in better, in the general scheme of the Corporation Act, the Apex Court interpreted the words ‘found to have been guilty’. (b) In Dena Bank v. Bhikhabhai Prabhudas Parekh & co. & others[3] wherein it is held thus: “…The ordinary rule is that a legislative enactment comes into operation only on its enactment. Retrospectivity is not to be inferred unless expressed or necessarily implied in the legislation, specially those dealing with substantive rights and obligations. It is a misnomer to say that Sub-section (2A) of Section 15 of the Karnataka Sales Tax Act is being given retrospective operation. Determining the obligation of the partners to pay the tax assessed against the firm by making them personally liable is not the same thing as giving the amendment a retrospective operation. In Principles of . Statutory Interpretation (by Justice G.P. Singh, Seventh Edition, 1999, at page 369) it is stated: The rule against retrospective construction is not applicable to a statute . merely "because a part of the requisites for its action is drawn from a time antecedent to its passing". If that were not so, every statute will be presumed to apply only to persons born and things . come into existence after its operation and the rule may well result in virtual nullification of most of the statutes. An amending Act is, therefore, not retrospective merely because it applies also to those to whom pre-amended Act . was applicable if the amended Act has operation from the date of its amendment and not from an anterior date.” (c) In J.Mitra & Company Private Limited v. Assistant Controller of Patents & Designs and Others,[4] wherein it is held thus: (para 27) “An act cannot be said to commence or to be in force unless it is brought into operation by legislative enactment or by the exercise of authority by a delegate empowered to bring it into operation.” 11. On the other hand, Smt. S.Vani, learned counsel appearing for 2nd respondent in Criminal Petition No.346 of 2009 contended that, the Domestic Violence Act, 2005 is a remedial statute; that, no new right is created in favour of women, but only speedy and comprehensive remedies are provided under the Act and therefore it is retrospective in operation. 12. The learned counsel relied on the following decisions in support of her contention. a) In Pratap Singh v. State of Jharkhand & another,[5] wherein it is held thus: “ The legislative intendment underlying Sections 3 and 26 read with the preamble, aims and objects of the Act is clearly discernible. A conjoint reading of the Sections, preamble, aims and objects of the Act leaves no matter of doubt that the legislature intended to provide protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for the adjudication thereof. …” b) In S.R.Batra & another v. Taruna Batra (Smt.)[6], wherein it is held thus: (paras 27 & 30). “It is well settled that any interpretation which leads to absurdity shall not be accepted. … No doubt, the definition of ‘shared household’ in Section 2(s) of the Act is not very happily worded, and appears to be the result of clumsy drafting, but we have to give it an interpretation which is sensible and which does not lead to chaos in society.” It is also observed by the Apex Court that the definition of shared house hold is not very happily worded. c) In B.P. Achala Anand v. S.Appi Reddy,[7] wherein it is held thus: (para 21) “This indicates that the right of residence is a part of the right to maintenance and in which case in the absence of an order by the matrimonial court in the proceedings for divorce, she would not be able to set up a claim in respect of the house even as against her husband, leave alone the landlord of her husband.” d) In the Secretary, Regional Transport Authority, Bangalore & anor. V. D.P. Sharma & another[8], wherein it is held thus: “.. In that case, the words ‘where a date has been proved under the principle Act,’ came to be construed and it was observed, ‘But this form of words is often used to refer, not to a past time which preceded the enactment, but to a time which is made past by anticipation a time which will have become a past time only when the event occurs on which the statute is to operate.” In our opinion, whether the expression ‘has been’ occurring in a provision of a statute denotes transaction prior to the enactment of the statute in question or a transaction after the coming into force of the statute will depend upon the intention of the Legislature to be gathered from the provision in which the said expression occurs or from the other provisions of the statute.” 13. It is not in dispute that there is no express provision under the Domestic Violence Act, 2005 that it applies retrospectively. Unless there are words in the statute sufficient to show the intention of the legislature or by necessary implication made to have retrospective operation, it is deemed to be prospective only. Retrospective legislation is never presumed and therefore a law will only be applied to cases occurring after its date of coming into force, unless it appears from the statute itself that it is intended to have retrospective effect. Similarly, it is also established that one of the cardinal principles of interpretation is that when language of a particular provision is plain and unambiguous, then the same should be read as such without importing foreign words to it. So also, the cardinal rule of construction of a statute is that it should be construed according to the intention expressed in statute itself. Construction of a Section is to be made of all parts together. Different parts of the same Section must be read together. With reference to the rule of construction, the Latin maxim ‘verbis standum ubi nulla ambiguitas’ which means ‘one must abide by the words there is no ambiguity’ is relevant. This maxim expresses the rule of construction where the words of statute are ambiguous, it becomes necessary in order to ascertain their meaning and intention to consider the circumstances in which the statute originated, the object of it had in view, the evil it was intended to correct, or the right it had intended to confer and in the light thus afforded an interpretation or construction is put upon the ambiguous words or phrases. But, where there is no ambiguity and the meaning of the words used is plain and distinct, that meaning must be given to them. Further, construction is not permitted where the expression is clear. 14. The statement of objects and reasons should not be used for interpreting the Act, but, it is permissible to refer them to know the historical background and mischief intended to cure. On this aspect, it is pertinent to refer to a decision in State of West Bengal v. Union of India[9], wherein it is held thus: “It is however well settled that the Statement of Objects and Reasons accompanying a bill, when introduced in Parliament cannot be used to determine the true meaning and effect of substantive provisions of the statute. They cannot be used except for the limited purpose of understanding the background and the antecedent state of affairs leading up to the legislation. But we cannot use this statement as an aid to the construction of the enactment or to show that the legislature did not intend to acquire the proprietary rights vested in the State or in any way to affect the State Governments’ rights as owner of minerals. A statute, as passed by Parliament, is the expression of the collective intention of the legislature as a whole, and any statement made by an individual, albeit a Minister, of the intention and objects of the Act cannot be used to cut down the generality of the words used in the statute.” 15. The object of interpreting a statute is to ascertain the intention of the legislation enacting it. In Siva Shakti Co-op. Housing Society, Nagpur v. Swaraj Developers & others[10], it is held thus: (para 19) “It is well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the Legislature. The Language employed in a statute is the determinative factor of legislative intent. Words and phrases are symbols that stipulate mental references to reference. The object of interpreting a statute is to ascertain the intention of the Legislature enacting it. (See Institute of Chartered Accountants of India v. Price Waterhouse and Anr.: (1997)6SCC312 ) The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support addition or substitution of words or which results in rejection of words as meaningless has to be avoided. As observed in Crawford v. Spooner , Courts, cannot aid the Legislatures' defective phrasing of an Act, we cannot add or mend, and by construction take up deficiencies which are left there. (See The State of Gujarat and Ors. v. Dilipbhai Nathjibhai Patenl and Anr. : [1998]2SCR56 ). It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. (See Stock v. Frank Jones (Tiptan) Ltd. (1978 1 All ER 943 (HL). Rules of interpretation do not permit Courts to do so, unless the provision as it stands is meaningless or of doubtful meaning. Courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. (Per Lord Loreburn L.C. in Vickers Sons and Maxim Ltd. v. Evans (1910) AC 445 (HL), quoted in Jamma Masjid, (SIC) v. Kodimanjaudra Deviah and Ors.: AIR1962SC847 .” 16. In a decision in Doypack Systems P. Ltd. v. Union of India,[11] case it is held thus: “The words in the statute must, prima facie, be given their ordinary meanings. Where the grammatical construction is clear, manifest and without doubt, that construction ought to prevail unless there are some strong and obvious reasons to the contrary. ..” “It has to be reiterated that the object of interpretation of a statute is to discover the intention of Parliament as expressed in the Act. The dominant purpose in construing a statute is to ascertain the intention of the Legislature as expressed in the statute, considering it as a whole and in its context. That intention, and, therefore, the meaning of the statute, is primarily to be sought in the words used in the statute itself, which must, if they are plain and unambiguous, be applied as they stand …” 17. Similarly, on the aspect of whether the enactment passed by a legislature is prospective or not, it is pertinent to refer to a decision in Zile Singh v. State of Haryana & others[12], wherein it is held thus: (para 13) “It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective only 'nova constitutio futuris formam imponere debet non praeteritis' -- a new law ought to regulate what is to follow, not the past. (See : Principles of Statutory Interpretation by Justice G.P. Singh, Ninth Edition, 2004 at p.438). It is not necessary that an express provision be made to make a statute retrospective and the presumption against retrospectivity may be rebutted by necessary implication especially in a case where the new law is made to cure an acknowledged evil for the benefit of the community as a whole. (ibid, p.440)” Similarly, in para 15, four factors are suggested whether the intention of legislature is to give retrospectively. “Though retrospectivity is not to be presumed and rather there is presumption against retrospectivity, according to Craies (Statute Law, Seventh Edition), it is open for the legislature to enact laws having retrospective operation. This can be achieved by express enactment or by necessary implication from the language employed. If it is a necessary implication from the language employed that the legislature intended a particular section to have a retrospective operation, the Courts will give it such an operation. In the absence of a retrospective operation having been expressly given, the Courts may be called upon to construe the provisions and answer the question whether the legislature had sufficiently expressed that intention giving the Statute retrospectivity. Four factors are suggested as relevant: (i) general scope and purview of , the statute; (ii) the remedy sought to be applied; (iii) the former state of the law; and (iv) what it was the legislature contemplated (p.388). The rule against retrospectivity does not extend to protect from the effect of a repeal, a privilege which did not amount to accrued right (p.392).” 18. The following statutory provisions of interpretation have to be kept in view while considering whether the main Act as well as its amendment are prospective or retrospective in effect: (1) what was the object of the Act; (2) what was the evil that was intended to be cured by the Act; (3) the establishment of the machinery for achieving the object. 19. Similarly, retrospectivity is liable to be decided on a few touch stones, as laid down in National Agricultural Co- operative Marketing Federation of India Ltd. and Anr. v. Union of India (UOI) and Ors.[13] (para 20). “As has been held in Ujagar Prints v. Union of India: [1989]179ITR317a(SC) . "A competent legislature can always validate a law which has been declared by courts to be invalid, provided the infirmities and vitiating in factors noticed in the declaratory judgment are removed or cured. Such a validating law can also be made retrospective. If in the light of such validating and curative exercise made by the legislature - granting legislative competence - the earlier judgment becomes irrelevant and unenforceable that cannot be called an impermissible legislative overruling of the judicial decision. All that the legislature does is to usher in a valid law with retrospective effect in the right of which the earlier judgment becomes irrelevant".” 20. Similarly, in a decision in S.L.Srinivas Jute Twine Mills P. Ltd. V. Union of India & anr.,[14] it is held thus: (para 15) “It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation.(See Keshvan Madhavan Memon v. State of Bombay 1951CriLJ680 ). But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective only 'nova constitutio futuris formam imponere debet non praeteritis'. In the words of LORD BLANESBURG, "provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary