Supreme Court of India
HIRAL P. HARSORA AND ORS.versusKUSUM NAROTTAMDAS HARSORA AND ORS.
- Citation
- 2016 INSC 955
- Decided
- 6 October 2016
- Disposal
- Disposed off
- Bench
- KURIAN JOSEPH
Holding
The words "adult male" in Section 2(q) are unconstitutional and are struck down, leaving the definition of "respondent" to mean any person in a domestic relationship with the aggrieved woman, and the proviso becomes otiose.
Summary
The Supreme Court examined the definition of "respondent" in Section 2(q) of the Protection of Women from Domestic Violence Act, 2005, which limited it to an "adult male person". The Court held that this restriction bore no rational relation to the Act's purpose of protecting women from all forms of domestic violence and constituted invidious discrimination under Article 14. It struck down the words "adult male" and, by severability, rendered the proviso otiose. Consequently, the definition now includes any person who is or has been in a domestic relationship with the aggrieved woman. The Court set aside the Bombay High Court’s reading‑down order and disposed of the appeal.
Issues considered
- The constitutional validity of the phrase "adult male person" in Section 2(q) of the Domestic Violence Act, 2005.
- Whether the phrase violates Article 14 of the Constitution.
- Whether the provision can be read down or must be struck down.
- The applicability of the doctrine of severability to the struck‑down words and the proviso.
Legislation cited
- Code of Criminal Procedure, 1973s. 125
- Constitution of Indias. Article 14
- Hindu Succession Act, 1956s. 6
- Protection of Women from Domestic Violence Act, 2005s. 17(2), s. 18, s. 19, s. 20, s. 26, s. 2(q), s. 2(s), s. 3
Subjects
Protection of Women from Domestic Violence ActArticle 14Gender discriminationClassificationSeverabilityConstitutional validityDomestic relationshipLegal definition
Judgment
[2016] 9 S.C.R. 515
HIRAL P. HARSORA AND ORS. A
v.
KUSUM NAROTTAMDAS HARSORA AND ORS.
(Civil Appeal No. I 0084 of2016)
OCTOBER 06, 2016 B
[KURIAN JOSEPH AND R. F. NARIMAN, JJ.)
Protection of Women from Domestic Violence Act, 2005 - s.
2(q) and its proviso - Constitutional validity of s. 2(q) - Held; The
object of the Act is to provide various remedies to women who suffer
from domestic violence - Preamble of the Act also makes it clear
c
that the Act is to redress violence, whether physical, sexual, verbal,
emotional or economic - The definition of 'respondent' in s.2(q) is
not based on any intelligible dijferentia having any rational relation
to the object sought to be achieved by the Act - The microscopic
difference between male and female, adult and non adult, regard D
being had to the object sought to be achieved by the Act, ·is neither
real nor substantial nor does it have any rational relation to the
object of the legislation - Rather the words 'adult male person' are
contrary to the object - Therefore, the words, 'adult male' before
the word 'person' in s., 2 (q) are struck down as these words
E
discriminate between persons similarly situated and being contrary
to the object to be achieved by the Act ...:. Applying the principle of
severability, on striking down the expression 'adult male', the rest
of the Section is left intact and can be enforced to achieve the object
of the legislation without the offending words - The proviso to s.2(q) .
has been provided only to carve out an exception to a situation .of F
'respondent' not being an 'adult male',... Once 'adult male' is struck .'•,
down, the proviso has no independent existence, having been
rendered otiose - Constitution of India - Art. · 14 - Doctrine of
severability.
Disposing of the appeal, the Court ·a
HELD: 1. A cursory reading of the statement of objects
and rea-sons makes it clear that the phenomenon of domestic
violence against women is widely prevalent and needs redressal.
Whereas crimhJal law does offer sQme redressal, civil law does
H
515
516 SUPREME COURT REPORTS [2016] 9 S.C.R.
A not address this phenomenon in its entirety. The idea therefore
is to provide various innovative remedies in favour of women
who suffer from domestic vio-lence, against the perpetrators of
such violence. (Para 14][532-E-F]
Re: Special Courts Bill (1979) 2 SCR 476 - followed.
B Shashikant Laxman Kale v. Union of India (1990) 2
SCR 441; Harbilas Rai Bansal '" State of Punjab 1995
(6) Suppl. SCR 178 : (1996) 1 SCC 1 - relied on.
2. The preamble of the statute is again significant. The 2005
Act is to provide for effective protection of the rights of women
C who are victims of violence of anv 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
D themselves, is obvious. (Para 16)(532,-H; 533-A]
3. 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
E 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
F members of a family related by blood. [Para 18][540-D-F]
4. Equally, a shared household includes a household which
belongs to a joint family of which the respondent is a member.
Even before the 2005 Act was brought into force on 26.10.2006,
Section 6 of Hindu Succession Act, 1956 was amended, with effect
G from 9.9.2005, to make females coparceners of a joint Hindu
family and so have a right by bil·th in the property of such joint
family. This being the case, whe1; a member of a joint Hindu
family will now include a female co1larcener as well, the restricted
definition contained in Section '.t(q) has necessarily to be given a
relook, given that the definition of 'shared household' in Section
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HIRAL P. HARSORA AND ORS. v. KUSUM NAROTTAMDAS 517
HARSORA AND ORS.
2(s) of the Act would include a household which may belong to a 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
B
male person", while Section 2(s) would include such female
coparcener as a respondent, being a meinber of a joint family.
This is one glaring anomaly. [Para 18][540-F-H; 541-A-B]
5, 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 c
can all be by women against other women. Even sexual abuse
may, in a given fact circumstance, be by one woman on another.
Sectio~ 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. [Para 19][541-B-C] D
- 6. 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 E
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 aggrieved
person from the shared ho~sehold. This again is an important
indicator that the object of the Act will not be sub-served by F
reading "adult male person" as "respondent". [Para 19][541-D-
E]
7. 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 G
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. [Para 20][541-F-G]
H
518 SUPREME COURT REPORTS [2016] 9 S.C.R.
A 8. Section 19(l)(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
8
relatives, which include female relatives of the respondent, are
also bound by it. [Para 21)[541-G, H; 542-A]
9. Under Section 20, a Magistrate may directthe respondent
to pay monetary relief to the aggrieved person, of various kinds,
mentioned in the Section. If the respondent is only to be an
c "adult male person", and the money payable has to be as a result
of domestic violence, 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
D consequently be entitled to monetary relief against her husband
and his female relatives, which includes the mother-in-law. [Para
22][542-D-E]
10. The sweep of the Act is such that all the innovative
reliefs available under Sections 18 to 22 may also be sought in
E 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 inay
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 ~ct. Tims, an invidious discrimination
F 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
G 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
H
HIRAL P, HARSORA AND ORS. v. KUSUM NAROTTAMDAS 519
HARSORA AND ORS,
intelligible differentia having any rational relation to the object A
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.[Para
23][542-F-H; 543-A-B]
B
11. 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".[Para 24][543-D-E]
c
12. The Protection from Domestic Violence Bill, 200~ was
first introduced in the Lok Sabha in 2002 which had lapsed also
defined "respondent" as meaning "any person who is ..... " without
the addition of the words "adult ~ale", being in consonance with
the object sought to .be achieved by the Bill, which was pari D
materia with the object sought to be achieved by the present
Act.· In the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013, "resp_ondent"
is defined in Section 2(111) thereof as meaning a person against
whom the aggrieved woman has made a complaint under Section E
9. Here again 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. Thus, 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 F
object sought to be achieved by such legislations. [Paras 41,
42)(554-E; 555-B-E)
13. Over emphasis on the doctrine of classification or an
anuous_and sustained attempt to discover some basis for
classification may gradually and imperceptibly deprive Article 14 G
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
H
520 SUPREME COURT REPORTS [2016] 9 S.C.R.
A the doctrine of equality, by restricting -the reach of a social
beneficial statute meant to protect women against all form~ of
domestic violence. [Para 31)(546-G-H; 547-A]
State of U.P. v. Deoman Upadhyaya (i961) 1 SCR 14;
Lachhman Dass v. State of Punjab (1963) 2 SCR 353 -
D relied on.
14. 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 nor substantial nor does
it have any rational relation to the object of the legislation. In
c fact, the words "adult male person" are contrary to the object of
affording protection to women who have suffered from domestic
violence "of any kind". Therefore, the words "adult male" before
the word "person" in Section 2(q) are struck down, 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
D the 2005 Act. [Para 36)[551-D-F)
D.S. Nakara v. Union of India (1983) 1 SCC 305: 1983
(2) SCR 165; Re: Special Courts Bill (1979) 2 SCR 476;
Maneka Gandhi v. Union of India (1978) 2 SCR 621;
Subra111anian Swamy v. CBI (2014) 8 SCC 682 : 2014
E (6) SCR 873 - followed.
Rattan Arya and Ors. v. State. of Tamil Nadu and Am:
(1986) 3 SCC 385 : 1986 (2) SCR 596; Union of India
v. N.S. Ratnam (2015) 10 SCC 681 : 2015 (8) SCR 751;
Cellular Operators Association of India v. TRAI (2016)
F 7 sec 703 - relied on.
B.R. Kapur v. State of T.N. (2001) 7 SCC 231: 2001 (3)
Suppl. SCR 191 - referred to.
15. An application of the severability principle would make
it clear that having struck down the expression "iidult male" in
G
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 ad nit male.
H
HIRAL P. HARSORA AND ORS. v. KUSUM NAROTTAMDAS 521
HARSORA AND ORS.
Once the expression 'adult male' is struck down, the proviso A
has no independent existence, having been rendered otiose and
hence stands deleted. [Paras 40, 46)(554-D-E; 558-G]
D.S. Nakara v. Union of India (1983) 1 SCC 305: 1983
(2) SCR 165; R.MD. Chamarbaugwalla v. Union of
India 1957 SCR 930 - followed. B
Corporation of Calcutta v. Calcutta Tramways Co. Ltd.
(1964) 5 SCR 25; Motor General Traders '~ State of
A.P. (1984) 1 SCC 222 : 1984 (1) SCR 594; Satyawati
S~arma v. Union of India (2008) 5 SCC 287 : 2008 (6)
SCR 566 - relied on. c
Sandhya Manoj Wankhade v. Manoj Bhimrao
Wankhade 2011 (2) SCR 261 : (2011) 3 SCC 650 -
relied on.
Indra Sanna v. V.K. V. Sanna 2013 (14) SCR 1019 :
(2013) 15 SCC 755; Badshah v. Urmila Badshah Godse D
& Anr. 2013 (10) SCR 259 : (2014) 1 SCC 188 -
referred to.
Case Law Reference
(11)90) 2 SCR 441 followed Para 11
E
1995 (6) Suppl. SCR 178 relied on Para 12
2011. (2) SCR 261 relied on Para 26
2013 (14) SCR 1019 referred to Para 27
2013 (10) SCR 259 referred to Para28 F
(1961) 1 SCR 14 relied on Para30
(11)63) 2 SCR 353 relied on Para 31
1983 (2) SCR 165 followed Para32
(11)79) 2 SCR 476 followed Para32 G
(11)78) 2 SCR 621 followed Para32
1986 (2) SCR 596 relied on Para33
2014 (6) SCR 873 followed Para34
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522 SUPREME COURT REPORTS (2016] 9 S.C.R.
A 2015 (8) SCR 751 relied on Para35
1957 SCR 930 followed Para36
(1964) 5 SCR 25 relied on Para37
1984 (1) SCR 594 relied on Para38
B 2008 (6) SCR 566 relied on Para 39
(2016) 7 sec 703 relied on Para 44
2001 (3) Suppl. SCR 191 referred to Para 45
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10084
of2016.
c From the Judgment and Order dated 25.09.2014 of the High Court
of Bombay in WP(C) No 300 of2013.
Haren P. Raval, Sr. Adv., Naren Thakore, Bhargava V. Desai,
Ms. Akriti Dewan, Ms. DivyaAnand, Anando Mukherjee, Nipun Saxena,
Advs. for the Appellants.
D
· Ms. Pinki Anand, ASG, Ms. Meenakshi Arora, Sr. Adv., Ajay
Sharma, Shailendra Saini, Karan Seth, Ansh Luthra, Shashank Dewan,
Gurmeet Singh Makker, Ms. Manisha T. Karia, Annanya Ghosh, Mud it
Sood, Ms. Nidhi Nagpal, Nishant Ramakantrao Katneshwarkar, Arpit
Rai, Advs. for the Respondents.
E The Judgment of the Court was delivered by
R.F. NARIMAN, J. I. 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
F of Women from Domestic Violence Act, 2005, (hereinafter referred to
as "the 2005 Act").
3. On 3.4.2007, Kus um Narottam Harsora and her mother Pushpa
Narottam Harsora filed a complaint under the 2005 Act against Pradeep,
the brother/son, and his wife, and two sisters/daughters, alleging various
G 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
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HJRAL P. HARSORA AND ORS. v. KUSUM NAROTTAMDAS 523
HARSORA AND ORS. [R.F. NARIMAN, J.]
learned Metropolitan Magistrate for a discharge ofrespondent Nos. 2 to A
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
B
petition filed againstthe 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.
5. The present proceedings arise because mother and daughter
have now filed a writ petition, being writ petition No.300/2013, in which c
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 D
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, E
we are inclined to read down the provisions of section 2(q) of
the DY Act and to hold that the provisions of"respondent"
in section 2(q) of the DY Act is not to be read in isolation
but has to be read as a pmt of the scheme of the DY Act,
and particularly along with the definitions of "aggrieved F
person", "domestic relationship" and "shared household" ·
in clauses (a), (f) and (s) of section 2 of the DY 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 G
complaint can also be filed against a relative of the son or
brother including wife of the son I wife of the brother and
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
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524 SUPREME COURT REPORTS [2016] 9 S.C.R.
A 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, ifno complaint is
B
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
c 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
D 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 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"
E 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
F 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.
G
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 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
H
HIRAL P. HARSORA AND ORS. v. KUSUM NAROTTAMDAS 525
HARSORA AND ORS. [R.F. NARIMAN, J.]
the reach of the Act would have to be either struck down as being A
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
B
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 c
that the High Court judgment was right, and that ifthe said expression is
not struck down, it ought to be read down in the manner suggested to
make it constitutional. She also added that the doctrine of severability
would come to her rescue, and that ifthe said expression were deleted
from Section 2(q), the Act as a whole would stand and the object sought
D
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 E
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 ofShri 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
F
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 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 G
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 per:son" 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
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526 SUPREME COURT REPORTS [2016] 9 S.C.R.
A 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 ofajoint 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
B
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.
9. Ms. Pinky Anand, learned Additional Solicitor General for India,
c more or less adopted the arguments of the counsel who appeared for
the Union oflndia 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 of2011dated2.9.2011) of the Delhi High Court, laying
down that the mother-in-I~~ is also entitled to file a complaint against
D 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.
E
l 0. 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
F so doing, this Court is only following the law already laid down in the
followingjudgments.
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
G referring in detail to Re: Special Courts Bill, 1979 2 SCR 4 76 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
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HIRAL P. HARSORA AND ORS. v. KUSUM NAROTTAMDAS 527
HARSORA AND ORS. [R.F. NARIMAN, J:]
to the true object of the enactment that the existence of a 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 Be1111io11 's Statutory
Interpretation, ( 1984 edn.), the distinction between the
B
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 c
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 ofthe legislation is to provide a remedy
for the malady, the legislative intention relates to the meaning . D
or exposition of the remedy as enacted. While dealing with
the validity 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 E
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 11nd which necessitated the passing of
that law. For the limited purpose of appreciating the F
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 G
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,
H
528 SUPREME COURT REPORTS [2016] 9 S.C.R.
A 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) I SCR 371 :
AIR 1963 SC 1241] that the Statement of Objects and
B
Reasons accompanying a Bill, whc': 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
·c 397 : (1957) 31 ITR 565] a challenge to the validity of
classification was repelled placing reliance on an affidavit
filed on behalfofthe Central Board of Revenue disclosing
the true object of enacting the impugned provision in the
Income Tax Act."
D 12. To similar effect, this Court held in Harbilas Rai Bansal v.
State of Punjab, (1996) I SCC I, as follows:
"The scope of Article 14 has been authoritatively laid down
by this Comi in innumerable decisions including Budhan
Chaudhry v. State of Bihar [(1955) 1 SCR 1045 : AIR
E 1955 SC 191] , Ram Krishna Dalmia v. Justice S.R.
Tendolkar [ 1959 SCR 2 79 : AIR 195 8 SC 53 8] , 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 195 8 SC
731]. To be permissible under Article 14 of the Constitution
F 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
G 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:
H "Statement of Objects and Reasons of the East
HIRAL P. HARSORA AND ORS. v. KUSUM NAROTTAMDAS 529
HARSORA AND ORS. [R.F. NARIMAN, J.]
Punjab Urban Rent Restriction Act, 1949 (Act 3 of A
1949).- Under Article 6 of the India (Provisional
Constitution) Order, 194 7, any law made by the Governor
of the Punjab by virtue of Section 93 cifthe Government of
India Act, 1935, which was in force immediately before
15-8-1947, is to remain in force for two years from the
B
date on which the Proclamation ceased to have effect, viz.,
14-8-194 7. A Governor's Act will, therefore, cease to have
effect on 14-8-1949. It is desired that the Punjab Urban
Rent Restriction Act, 194 7 (Punjab Act No. VI of 194 7),
being a Governor's Act, be re-enacted as a permanent
measure, as the need for restricting the increase of rents of c
certain premises situated within the limits of urban areas
and the protection of tenants.against mala fide attempts by
their landlords to procure theif eviction would be there even
after 14-8-1949.
In order to achieve the above object, a new Act D
incorporating the provisions of the Punjab Urban Rent
Restriction Act, 194 7 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 E
the tenants against the ma la 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:
F
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 G
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 ofthe
tenant. The classification created by the amendment has H
530 SUPREME COURT REPORTS [2016) 9 S.C.R.
A 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 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
B 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)
c 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
D
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
E 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
F 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 and the Platform for
G 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
H of any kind especially that occurring within the family.
HIRAL P. HARSORA AND ORS. v. KUSUM NAROTTAMDAS 531
HARSORA AND ORS. [R.F. NARIMAN, J.]
2. The phenomenon of domestic violence is widely prevalent A
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 section498A
of the Indian Penal Code. The civil law does not however
address this phenomenon in its entirety.
B
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. c
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 D
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,
widows, mothers, single women, or living with the abuser
are entitled to legal protection under the proposed E
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 F
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
G
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
H
532 SUPREME COURT REPORTS [2016] 9 S.C.R.
A secured by a residence order, which is passed by the
Magistrate.
iv) It empowers the Magistrate to pass protection orders in
fa:vour of the aggrieved person to prevent the respondent
from aiding or committing an act of domestic violence
B 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.
c
(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.
D
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
E 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.
F
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
G victims of violence of any kind occurring within the family
and for matters connected therewith or incidental thereto."
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 vi.olence
of any kind occurring within the family. The preamble also makes it
H
HIRAL P. HARSORA AND ORS. v. KUSUM NAROTTAMDAS 533
HARSORA AND ORS. [R.F. NARIMAN, J.]
clear that the reach of the Act is that violence, whether physical, sexual, A
verbal, emotional or economic, arc 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 itsel~.
17. The relevant provisions of the statute are contained in the B
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 c
who alleges to have been subjected to any act of domestic
violence by the respondent;
(t) "domestic relationship" means a relationshrp between.
two persons who live or have, at any point of time, lived
together in a shared household, when they are related by D
consanguinity, marriage, or through a relationship in the
nature of marriage, adoption or are family members living
together as a joint family;
(q) "respondent" means any adult male person who is, or
has been, in a domestic relationship with the aggrieved E
person and against whom the aggrieved person has sought
any reliefunder 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 F
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 G
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
H
534 SUPREME COURT REPORTS [2016) 9 S.C.R.
A 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
B the respondent shall constitute domestic violence in case
it-
( a) banns 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
c 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
D property or valuable security; or
( 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
E mental, to the aggrieved person. Explanation 1.-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
F 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;
G (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
H
HIRAL P. HARSORA AND ORS. v. KUSUM NAROTTAMDAS 535
HARSORA AND ORS. [R.r. NARIMAN, J.]
(b) repeated threats to cause physical pain to any person in A
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 B
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 c
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 D
domestic relationship or which may be reasonably required
by the aggrieved person or her children or her stridhan or
any other property jointly or separately held by the aggrieved
person; and
(c) prohibition or restriction to continued access to resources E
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 IL-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 F
the case shall be taken into consideration.
I 7. Right to reside in a shared household.-
( I) Notwithstanding anything contained in any other law
for the time being in force, every woman in a domestic
G
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
H
536 SUPREME COURT REPORTS [2016] 9 S.C.R.
A 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
B 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
(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;
(d) attempting to communicate in any form, whatsoever,
with the aggrieved person, including personal, oral or written
D
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,, inc 1ud ing her stridhan or any other property
E
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;
F
(g) committing any other act as specified in the protection
order.
19. Residence orders.-
( 1) While disposing of an application under sub section (I)
G 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
H
HIRAL P. HARSORA AND ORS. v. KUSUM NAROTTAMDAS 537
HARSORA AND ORS. [R.F. NARIMAN, J.]
respondent has a legal or equitable interest in the shared A
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 B
.........
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 c
.. the shared household except with the leave of the
Magistrate; or
(t) directing the respondent to secure same level of alternate
accommodation for the aggrieved person as enjoyed by her
in the shared household or to pay rent for the same, if the
D
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
E
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.
F
(4) An order under sub-section (3) shall be deemed to be
an order under Chapter Vlll of the Code of Criminal
Procedure, 1973 (2 of 1974) and shall be dealt with
accordingly.
(5) While passing an order under sub-section (I), sub- . G
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.
y .. H
538 SUPREME COURT REPORTS [2016] 9 S.C.R.
A (6) While making an order under sub-section (I), 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
B police station in whose jurisdiction the Magistrate has been
approached to assist in the implementation of the protection
order.
(8) The Magistrate may direct the respondent to return to
the possession of the aggrieved person her stridhan or any
c other property or valuable security to which she is entitled
to.
20. Monetary reliefs.-
( I) While disposing ofan application under sub-section (I)
of section 12, the Magistrate may direct the respondent to
D 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;
E
(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
F (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 I 974) or any other law
for the time being in force.
G (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
H
HIRAL P. HARSORA AND ORS. v. KUSUM NAROTTAMDAS 539
HARSORA AND ORS. [R.F. NARIMAN, J.)
appropriate lump sum payment or monthly payments of A
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 (I) to the pa11ies
to the application and to the in-charge of the police station B
within the local limits of whose jurisdiction the respondent
resides.
(5) The respondent shall pay the monetary relief granted to
the aggrieved person within the period specified in the order
under sub section (I). C
(6) Upon the failure on the part of the respondent to make
payment in terms of the order under sub section (I), the
Magistrate may direct the employer or a debtor of the
respondent, to directly pay to the aggrieved person or to
,deposit with the com1 a portion of the wages or salaries or D
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.-
I. Any reliefavailable under sections 18, 19, 20, 21 and 22 E
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 (I) may be sought F
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 G
th is Act, she shall be bound to infonn the Magistrate of the
grant of such relief.
3 l. Penalty for breach of protection order by
respondent.-
H
540 SUPREME COURT REPORTS [2016] 9 S.C.R.
A , (I) A breach of protection order, or of an interim protection
order, by the respondent shall be an offence under this Act
and shall be punishable with imprisonment of either
description for a term which may extend to one year, or
with fine which may extend to twenty thousand rupees, or
with both.
B
(2) The offence under sub-section (I) 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.
c (3) While framing charges under sub-section (!), 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."
D
18. It will be noticed that the definition of"domestic relationship"
contained in Section 2(t) 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
E 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 by blood. Equally, a shared household
F 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. l 0.2006, 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
G joint family. This being the case, when a member ofajoint 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
H respondent is a member. The aggrieved person can therefore make,
HIRAL P. HARSORA AND ORS. v. KUSUM NAROTTAMDAS 541
HARSORA AND ORS. [R.F. NARIMAN, J.]
after 2006, her sister, for example, a respondent, if the Hindu Succession A
Act amendment is to be looked at. But such is not the case under
Section 2(q) of the 2005 Act, as the main parrofSection 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 family. This is
one glaring anomaly which we have to address in the course of our
B
judgment.
19. When Section 3 of the Act defines domestic violence, it is
clear that such violence is gender neutral. lt 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 c
tune with the general object of the Act, seeks to outlaw domestic violence
of any kind agai.@.t 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" D
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 aggrieved E
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 l S(b), for example, when a protection order is F
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. G
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 H
542 SUPREME COURT REPORTS [2016] 9 S.C.R.
A 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. 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
8
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
c are not within the main part of the definition of respondent in Section
2( q), residence orders passed by the Magistrate under Section 19( I)( 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
D 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, 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
E 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
F 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
G the 2005 Act. Thus, an invidious discrimination will result, depending
upon whether the aggrieved person chooses to institute proceedings under
the 2005Act 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
proceeding initiated under the 2005 Act and proceeding initiated in other
H
HIRAL P. HARSORA AND ORS. v. KUSUM NAROTTAMDAS 543
HARSORA AND ORS. [R.F. NARIMAN, J.]
fora under other Acts, in which the self-same .reliefs grantable under A
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
B
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 wou Id i1.1 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 c
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 aggrieyed 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 in which the D
aggrieved person resides after a restraint order is passed against
the respondent and any ofhis 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 E
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.
F
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 G
"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
.H
544 SUPREME COURT REPORTS [2016] 9 S.C.R.
A 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
B 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
c 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
D 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
E 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 ~20] .
We may note that, in the instant case, there is no
F 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
G 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
H 2(1) of the DV Act, which is restrictive and exhaustive.
HIRAL P. HARSORA AND ORS. v. KUSUM NAROTTAMDAS 545
HARSORA AND ORS. [R.F. NARIMAN, J.]
Parliament has to ponder over these issues, bring inproper A
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 ofrelationship
might not be a relationship in the nature of a marriage."
[Paras 57, 59 & 64]
B
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:
c
"Thus, while interpreting 'a statute the court may not only
take into consideratio.n 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: 76 ER 637] which became the
historical source of purposive interpretation. The court D
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 'Ym be responsible for the smooth
working of the system for which the statute has been E
enacted rather than one which will put a road block in its
way. If the choice is between two interpretations, the
narrower ofwhich would fail to achieve the manifest puri}ose
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 F
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, G
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. H
546 SUPREME COURT REPORTS [2016] 9 S.C.R.
A 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 ofU.P. v. Deoman
Upadhyaya, (1961) 1 SCR 14, as the negative aspect of equality. The
"equal protection of the laws" in Article 14 has been borrowed from the
141h Amendment to the U.S. Constitution and has been described in the
B
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
c 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
D equally subjected to the ordinary law of the land; the latter
postulates an equal protection ofall 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, iflogically stretched too far, may not achieve
E 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 pennitted but is necessary if society
should progress. But such a classification cannot be
F 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 Pun.jab, (1963) 2 SCR 353,
Subba Rao, J. warned that over emphasis on the doctrine of classification
-- G or an anxious and sustained attempt to 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
i'adult male person" clearly subverts the doctrine of equality, by restricting
H
HIRAL P. HARSORA AND ORS. v. KUSUM NAROTTAMDAS 547
HARSORA AND ORS. [R.F. NARIMAN, J.]
the reach of a social beneficial statute meant to protect women against A
all forms of domestic violence.
32. We have also been referred to D.S. Nakara v. Union of
India, (1983) I 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 B
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 SCR476 and Maneka Gandhi v. Union ~flndia, (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 c
relation to the object 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 D
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 E
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 F
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 G
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 those
who, retired earlier cannot be worst off than those who
H
548 SUPREME COURT REPORTS [2016] 9 S.C.R.
A retire later. Therefore, this division which classified
pensioners into two classes is not based on any rational
principle and ifthe 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
B
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
c 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 lO months' average.
The artificial division stares into face and is unrelated to
D
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
E 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
F effect. Division is thus both arbitrary and unprincipled.
Therefore, the classification does not stand the test ofArticle
14." [para 42]
33. We were also referred to Rattan Arya and others v. State
ofTamil Nadu and another, (1986) 3 SCC 385, and in particular, to the
G 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 ifthe
H monthly rent paid by him in respect of that building or part
HIRAL P. HARSORA AND ORS. v. KUSUM NAROTTAMDAS 549
HARSORA AND ORS. [R.F. NARIMAN, J.]
exceeds four hundred rupees." A
By one stroke, this provision denies the benefits conferred
by the Act generally on all tenants to tenants ofresidential
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, B
Rs. 500 or Rs. 5000 per month, a tenant of a residential
building is protected ifthe rent is Rs. 50, but not ifit 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 ofa non-residential building
paying a rent of Rs. 5000 per month? Does it mean that the c
tenant ofa 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? D
Is there any justification at all for picking out the class of
tenants ofresidential 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? Neither from the Preamble of
the Act nor from the provisions of the Act has it been possible E
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 tqe ground that it made an invidious F
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) G
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:
H
550 SUPREME COURT REPORTS [2016) 9 S.C.R.
.-~-- A "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 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
B
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 ofinvestigation and inquiry equally. Based
c 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
D 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
E consequences. In the words of Mathew, J. in Shri Ambica
Mills Ltd. [State of Gujarat v. Shri Ambica Mills Ltd.,
(1974) 4 sec 656 : I 974 sec (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
F 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,
G "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 positive public good. The
classification made in Section 6-A neither eliminates public
mischief nor achieves some positive public good. On the
H
HIRAL P. HARSORA AND ORS. v. KUSUM NAROTTAMDAS 551
HARSORA AND ORS. [R.F. NARIMAN, J.]
other hand, it advances public mischief and protects the A
crimedoer. The provision thwarts an independent,
unhampered, unbiased, efficient and fearless inquiry/
investigation to track down the corrupt public servants."
[paras 59 and 601 .
35. In a recent judgment, reported as Union of India v. N.S. B
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 reaJ and c
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 (I) SCC 116 : ·1989
SCC (L&S) 235 : (1989) 9 ATC 639] : "To overdo D
classification is to undo equality." [para 18]
36. A conspectus of these judgm~ents 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 it have any rational relation to E
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 F
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
G
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 oflndia, 1957 SCR 930. This
judgment has been applied in many cases. It is not necessary to refer to
H
552 SUPREME COURT REPORTS [2016] 9 S.C.R.
A the plethora of case law on the application of this judgment, except to
refer to one or two judgments directly on point.
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 ofSection437(iXb) oftheCalcutta Municipal
B 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.
c 38. Similarly, in Motor General Traders v. State of A.P., (1984)
I 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
D 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.
E 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 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
F 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 inAndhra Pradesh on its formation. After
the Second World War owing to acute shortage of urban
G housing accommodation, rent control laws which were
brought into force in different parts of India as pieces of
temporary legislation gradually became almost pennanent
statutes. Having regard to the history of the legislation under
review, we are of the view that the Act has to be sustained
H
HTRAL P. HARSORA AND ORS. v. KUSUM NAROTTAMDAS 553
HARSORA AND ORS. [R.F. NARIMAN, J.]
even after striking down clause (b) of Section 32 of the A
Act. The effect of striking down the impugned provision
would be that all buildings exceptthose 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
B
29]
39. In Satyawati Sharma v. Union oflndia, (2008) 5 SCC 287,
Section 14(l)(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 c
argument was made that ifthe Section was struck down only in part,
nothing more would 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)oftheI958Act is violative ofthe doctrine of equality D
embodied in Article 14 of the Constitution oflndia 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 E
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 F
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 remaini11g part thereof
may read as under:
G
"14. (I )(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
H
554 SUPREME COURT REPORTS [2016] 9 S.C.R.
A the landlord or such person has no other reasonably suitable
accommodation;
***"
While adopting this course, we have kept in view well-
recognised rule that ifthe offending portion ofa statute can
B 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 Bhawani Singh v. State of
Rajasthan[(l996) 3 SCC 105] .
c As a sequel to the above, the Explanation appearing below
Section l 4(l)(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
D 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
E 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:
F "2. Definitions.
In this Act, unless the context otherwise requires,-
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
G respondent;"
xxxx
i) "relative" includes any person related by blood, marriage
or adoption and living with the respondent;
H
HIRAL P. HARSORA AND ORS. v. KUSUM NAROTTAMDAS 555
HARSORA AND ORS. [R.F. NARIMAN, J.)
j) "respondent' means any person who is or has been a 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, B
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. c
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 and Redressal)Act, 2013, "respondent" is defined
in Section 2(m) thereofas meaning a person against whom the aggrieved
woman has made a complaint under Section 9. Here again it will be D
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
oflife. 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 of2013 so as to be in tune with the E
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 F
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 judgment has
purported to read down Section 2( q) of the impugned Act. The doctrine G
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:-
H
556 SUPREME COURT REPORTS [2016] 9 S.C.R.
A "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
B
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 Womens Rights
to Property Act, 1937, In re [Hindu Womens Rights to
c 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 oflndiaAct, 1935. This is done because it
D
is prbumed that the legislature did not intend to transgress
constitutional limitations. While so reading down the word
"property", the Federal Court held: (SCC OnLine FC)
" ... If the restriction of the general words to purposes within
the power of the legislature would be to leave an Act with
E 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
F 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 [Ow1iers 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)]
G , R. v. Commonwealth Court of Conciliation and
Arbitration, exp Whybrow & Co. IR. 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
H
HIRAL P. HARSORA AND ORS. v. KUSUM NAROTTAMDAS 557
HARSORA AND ORS. [R.F. NARIMAN, J.]
Oil Co. Ltd. v. Federal Commr. of Taxation, (1925) 35 A
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 (I) SCC 600: 1991 SCC (L&S) 1213]
. In that case, a question arose as to whether a particular B
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' c
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 unconstitutional. In the lead judgment
on this aspect by Sawant, J., this Court stated: (SCC pp. D
728-29, para 255)
"255. It is thus clear that the doctrine of reading down or
ofrecasting 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 E
extension of the principle that when two interpretations are
possible--one rendering it constitutional and the other
making it unconstitutional, the former should ~e preferred.
The unconstitutionality may spring from either the
incompeten~e of the legislature to enact the statute or from
its violation of any of the provisions of the Constitution. F
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, G
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
H
558 SUPREME COURT REPORTS (2016] 9 S.C.R.
A 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 d6Ctrine can never be called
into play is where the statute requires extensive additions
B
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]
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
c 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 (I), sub-section (2) or sub-section
(3)", and it applies only to sitting members of Legislatures.
D 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, ifit were
found to be violative ofArticle 14, it would be struck down
E 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 di,squalification
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
F 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
G Section 2(q), being rendered otiose, also stands deleted. We may only
add that the impugned judgment has ultimately held, in paragraph 27,
that 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
H pointed out, Ms. Meenakshi Arora very fairly stated that she would not
HIRAL P. HARSORA AND ORS. v. KUSUM NAROTTAMDAS 559
HARSORA AND ORS. [R.F. NARIMAN, J.)
be pursuing those complaints, and would be content to have a declaration A
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, 20 I0. With this additional observation, this appeal
stands disposed of.
B
Kalpana K. Tripathy Appeal disposed of.
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