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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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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  The said complaint  was withdrawn on 27.6.2007 with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.  

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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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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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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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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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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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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.

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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

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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

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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

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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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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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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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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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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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(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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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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(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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(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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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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(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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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.

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(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.

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(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

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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

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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

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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

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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

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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,

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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

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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

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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

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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] .

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    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 :

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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

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Article 14 has been borrowed from the 14th Amendment to the

U.S.  Constitution  and  has  been  described  in  the  same

judgment  as  the  positive  aspect  of  equality  namely  the

protection of equal laws. Subba Rao, J. stated:

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

31. In  Lachhman Dass v. State of Punjab,  (1963) 2 SCR

353, Subba Rao, J. warned that over emphasis on the doctrine

of  classification  or   an  anxious  and  sustained  attempt  to 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

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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

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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]

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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?

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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

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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

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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

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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.   

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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

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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

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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

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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,-

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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

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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

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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)

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“…  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

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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]                       

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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

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the  two  complaints  of  2010,  in  which  the  three  female

respondents  were  discharged  finally,  were  purported  to  be

revived,  despite  there  being  no  prayer  in  Writ  Petition

No.300/2013 for  the  same.  When  this  was  pointed  out,  Ms.

Meenakshi  Arora  very  fairly  stated  that  she  would  not  be

pursuing  those  complaints,  and  would  be  content  to  have  a

declaration from this  Court  as to the constitutional  validity  of

Section  2(q)  of  the  2005  Act.   We,  therefore,  record  the

statement  of  the learned counsel,  in  which case it  becomes

clear  that  nothing  survives  in  the  aforesaid  complaints  of

October, 2010.   With  this  additional  observation,  this  appeal

stands disposed of.  

……………………J. (Kurian Joseph)

……………………J. New Delhi; (R.F. Nariman) October 6, 2016.

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