On October 6, 2016 a Bench of the Supreme Court comprising Justices Kurian Joseph and RF Nariman while setting aside a judgment of the Bombay High Court declared that the words “adult male” as occurring in section 2(q) of the Protection of Women from Domestic Violence (PWDV) Act, 2005 will stand deleted since these words do not square with Article 14 of the Constitution. Consequently, the proviso to the ibid section being rendered otiose also stands deleted.
Pertinent that a Division Bench of the Bombay High Court in September 2014 while adjudicating the constitutional validity of section 2(q) of the PWDV Act, 2005 had indeed read down the same while holding that the term ‘respondent' as defined therein is not to be read in isolation but has to be read as a part of the scheme of the ibid 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 Act.
Further the High Court ruled that the complaint against the daughter-in-law, daughters and sisters would be maintainable under the provisions of the PWDV Act, where they are co-respondent/s in a complaint against an adult male person, who is or has been in domestic relationship with the complainant and such co-respondent. It must, of course, be held that a complaint under the Act would not be maintainable against the daughter-in-law, sister-in-law or sister of the complainant, if no complaint is filed against an adult male person of the family.
Here it is worth mentioning that the Bombay High Court while delivering the above referred judgment had also made due reference to a decision of the Delhi High Court in Kusum Lata Sharma's case which has since not been disturbed by the Supreme Court. The ibid ruling dates back to September 2011 wherein Justice Mukta Gupta, a learned Judge of the Delhi High Court ruled that a mother-in-law being an ‘aggrieved person' can file a complaint against the daughter-in-law as a respondent. ( See Box )
Further, the Delhi High Court in another ruling has interpreted section 2(q) of the PWDV Act, 2005 on similar lines. The judgment titled Varsha Kapoor v. Union of India (June 2010) as authored by Justice AK Sikri, the then Judge of the Delhi High Court who is now an Hon'ble Judge of the Supreme Court, had opined that the ibid provision is not very satisfactorily worded and there appears to be some ambiguity in the definition of ‘respondent' as existing therein.
This judgment also quotes an extract from a report prepared by the Director of Southern Institute for Social Science Research which described the ambiguity in section 2(q) as “Loopholes to Escape the Respondents from the Cult of this Law”. As per section 2(q) the ‘respondent' means any adult male person who is or has been in a domestic relationship. Hence, a plain reading of the Act would show that an application will not lie under the provisions of the Act against a female. But when section 19(1) proviso is perused, it can be seen that the petition is maintainable, even against a lady.
Also it merits due reference here that even the Supreme Court in January 2011 in Sou Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade (Justices Altamas Kabir and Cyriac Joseph) laid down that the expression “female” has not been used in the proviso to section 2(q), but, if the Legislature intended to exclude females from the ambit of the complaint, which can be filed by an aggrieved wife, females would have been specifically excluded, instead of it being provided in the proviso that a complaint could also be filed against a relative of the husband or the male partner. No restrictive meaning has been given to the expression “relative”, nor has the said expression been specifically defined in the Domestic Violence Act, 2005, to make it specific to males only.
In such circumstances, it is clear that the legislature never intended to exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act, 2005.
However, here one needs to take into consideration the fact in Para 4(i) in the Statement of Objects and Reasons to the PWDV Bill, 2005 which, inter alia , explicitly mentioned that 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 relative of the 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.
Be that as it may, the PWDV Act, 2005 was enacted more than a decade back in September 2005 during the UPA-1 dispensation at a time when the Women and Child Development (WCD) was merely a Department under the Union Ministry of Human Resource Development. When the author of this cover story traced the legislative history of this enactment, he found that the Bill in this regard was tabled by Kanti Singh, the then Minister who was heading this Department, during the end of Monsoon Session of Parliament in August 2005 and it got passed within days by both Houses of Parliament without it being referred to any Standing Committee for due examination and report. The Bill got the assent of the President of India on 13th September, 2005.
Prior to the year 2005, the earlier avatar of the PWDV law viz. Protection from Domestic Violence Bill was introduced during the Vajpayee led NDA dispensation during 2002 but unfortunately as it could not get passed during the tenure of the thirteenth Lok Sabha, hence it lapsed. However, this piece of legislation indeed rationally defined the term ‘respondent' therein ( See Box ).
Although it has been a decade since the enforcement of the PWDV Act, 2005, till date there has not been any attempt even to seriously re-appraise, much less amend the law for reasons best known to the successive ruling dispensations, notwithstanding the fact that a number of judicial pronouncements notably by various High Courts across the country exhorted the need to do so in this regard.
Last year, the Madras High Court observed that the PWDV Act suffers from inherent flaws which tempt women to misuse their provisions and men to dread being prosecuted under the law without any rhyme or reason.
Justice S. Vaidyanathan of the Madras High Court said that the notable flaw in this law is that it lends itself to such easy misuse that women will find it hard to resist the temptation to teach a lesson to their male relatives and will file frivolous and false cases.
The Judge further said that now-a-days filing cases under the PWDV Act by women has become quite common. Therefore, a neutral and unprejudiced law is needed to protect the genuine victims of domestic violence, irrespective of their gender.
Noteworthy that only in May this year, the Union Minister of State for Home Affairs, Kiren Rijiju, admitted before the Rajya Sabha that the provisions of the PWDV Act are indeed prone to misuse and there have also been reports by certain NGOs in this regard. In the year 2014, from the time an official data under this Act is being recorded, only 426 cases were registered under the same. The number has only risen marginally to 461 in the corresponding year 2015.
A number of cases instituted under this law also get amicably settled between the parties and hence the conviction rate is also not too high. Nevertheless this law has got full potential to become a nightmare for certain innocent and hapless members of a family much akin to section 498A whose misuse has even been termed as a sort of “legal terrorism” by none other than the Apex Court some years back.
It would be highly appreciable on the part of the ruling Modi dispensation if it takes an initiative by asking the Law Commission of India to thoroughly examine the entire gamut of the PWDV Act, 2005 notably how it has evolved ever since it has been enforced in October 2006 coupled with suggesting suitable amendments therein so as to sternly curb instances of its misuse by certain vested interests.
Finally, it can be concluded that although post the Supreme Court's recent verdict interpreting ( read re-defining) in rational perspective the term ‘respondent' within the PWDV Act, 2005, the judicial proposition as laid down has immediately come into force, the same ought not to be taken as any excuse by the government of the day in evading its due responsibility of bringing an appropriate Amendment Bill so as to formally amend the ibid statute accordingly, preferably in the ensuing Winter Session of the Parliament. It is highly hoped that Maneka Sanjay Gandhi, Union Women and Child Development Minister would do the needful in this regard without any inordinate delay.