Page 1 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

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Page 2 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 The said complaint was withdrawn on 27.6.2007 with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.

2

Page 3 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

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Page 4 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

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Page 5 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

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Page 6 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

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Page 7 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

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Page 8 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.

8

Page 9 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

9

Page 10 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

10

Page 11 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

11

Page 12 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

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Page 13 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

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Page 14 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

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Page 15 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,

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Page 16 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.

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Page 17 (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.”

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Page 18 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;

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Page 19 (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

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Page 20 (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

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Page 21 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;

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Page 22 (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

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Page 23 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.

23

Page 24 (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.

24

Page 25 (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

25

Page 26 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

26

Page 27 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

27

Page 28 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

28

Page 29 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.

29

Page 30 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,

30

Page 31 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

31

Page 32 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

32

Page 33 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

33

Page 34 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] .

34

Page 35 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 :

35

Page 36 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

36

Page 37 Article 14 has been borrowed from the 14

th

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

37

Page 38 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

retired 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

38

Page 39 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

39

Page 40 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]

40

Page 41 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?

41

Page 42 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

42

Page 43 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

43

Page 44 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

44

Page 45 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.

45

Page 46 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

46

Page 47 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

47

Page 48 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

48

Page 49 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 Section 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,-

49

Page 50 a)“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

50

Page 51 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

51

Page 52 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)

52

Page 53 “… 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

53

Page 54 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]

54

Page 55 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

55

Page 56 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.

56