# HIRAL P. HARSORA AND ORS v. KUSUM NAROTTAMDAS HARSORA AND ORS

- **Citation:** [2016] 9 S.C.R. 515
- **Court:** Supreme Court of India
- **Decided:** 2016-10-06
- **Case number:** Civil Appeal No. I 0084 of2016
- **Bench:** Kurian Joseph, R. F. Nariman
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hiral-p-harsora-and-ors-v-kusum-narottamdas-harsora-and-ors-31475
- **Pages:** 45

## Headnote

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
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
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
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
'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
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
515
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[2016] 9 S.C.R.
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.
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]
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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
members of a joint family. A reading of these definitions makes it
clear that domestic relationships involve persons belonging to
both sexes and includes persons related by blood or marriage.
This necessarily brings within such domestic relationships male
as well as female in-laws, quite apart from male and female
members of a family related 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
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 incl

## Text

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[2016] 9 S.C.R. 515
HIRAL P. HARSORA AND ORS.
v.
KUSUM NAROTTAMDAS HARSORA AND ORS.
(Civil Appeal No. I 0084 of2016)
OCTOBER 06, 2016
[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
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
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
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
'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
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
515
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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.
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]
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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
members of a joint family. A reading of these definitions makes it
clear that domestic relationships involve persons belonging to
both sexes and includes persons related by blood or marriage.
This necessarily brings within such domestic relationships male
as well as female in-laws, quite apart from male and female
members of a family related 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
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
HIRAL P. HARSORA AND ORS. v. KUSUM NAROTTAMDAS
HARSORA AND ORS.
2(s) of the Act would include a household which may belong to a
joint family of which the respondent is a member. The aggrieved
person can therefore make, after 2006, her sister, for example, a
respondent, if the Hindu Succession Act amendment is to be
looked at. But such is not the case under Section 2(q) of the
2005 Act, as the main part of Section 2(q) continues to read "adult
male person", while Section 2(s) would include such female
coparcener as a respondent, being a 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
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]
- 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
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
reading "adult male person" as "respondent". [Para 19][541-DE]
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
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]
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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
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
"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
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
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
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
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
HIRAL P, HARSORA AND ORS. v. KUSUM NAROTTAMDAS
HARSORA AND ORS,
519
intelligible differentia having any rational relation to the object
sought to be achieved by the 2005 Act. The restriction of such
person to being an adult male alone is obviously not a differentia
which would be in sync with the object sought to be achieved
under the 2005 Act, but would in fact be contrary to it.[Para
23][542-F-H; 543-A-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]
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
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
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
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
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
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[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)
E
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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
(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)
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
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.
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
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(2016] 9 S.C.R.
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
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.
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.
· 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.
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
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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
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acts of violence against them. The said complaint was withdrawn on
27.6.2007 with liberty to file a fresh complaint.
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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
HJRAL P. HARSORA AND ORS. v. KUSUM NAROTTAMDAS
HARSORA AND ORS. [R.F. NARIMAN, J.]
learned Metropolitan Magistrate for a discharge ofrespondent Nos. 2 to
4 stating that as the complaint was made under Section 2(a) read with
Section 2(q) of the 2005 Act, it can only be made against an adult male
person and the three respondents not being adult male persons were,
therefore, required to be discharged. The Metropolitan Magistrate passed
an order dated 5.1.2012 in which such discharge was refused. In a writ
petition filed 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
the constitutional validity of Section 2(q) has been challenged. Though
the writ petition was amended, there was no prayer seeking any
interference with the order dated 15.2.2012, which, as has already been
stated hereinabove, has attained finality.
6. The Bombay High Court by the impugned judgment dated
25.9.2014 has held that Section 2( q) needs to be read down in the following
manner:-·
"In view of the above discussion and in view of the fact
that the decision of the Delhi High Court in Kusum Lata
Sharma's case has not been disturbed by the Supreme Court,
we are inclined to read down the provisions of section 2(q) of
the 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
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
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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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
filed against an adult male person of the family."
7. The present appeal has been filed against this judgment. Shri
Harin P. Raval, learned senior advocate appearing on behalf of the
appellants, assailed the judgment, and has argued before us that it is
clear that the "respondent" as defined in Section 2( q) of the said Act
can only mean an adult male person. He has further argued that the
proviso to Section 2( q) extends "respondent" only in the case of an
aggrieved wife or female living in a relationship in the nature of a marriage,
in which case even a female relative of the husband or male partner
may be arraigned as a respondent. He sought to assail the judgment on
the ground that the Court has not read down the provision of Section
2(q), but has in fact read the proviso into the main enacting part of the
said definition, something that was impermissible in law. He has argued
before us that the 2005 Act is a penal statute and should be strictly
construed in the event of any ambiguity. He further argued that in fact
there was no ambiguity because the expression "adult male person"
cannot be diluted in the manner done by the High Court in the impugned
judgment. He cited a large number of judgments on the golden rule of
literal construction, on how reading down cannot be equated to re-reading
in constitutional law, and on how a proviso cannot be introduced into the
main part of a provision so as to distort its language. He also cited before
us judgments which stated that even though a statute may lead to some
hardship, that would not necessarily render the provision unconstitutional
nor, in the process of interpretation, can a Court mend or bend the
provision in the face of the plain language used. He also cited judgments
before us stating that given the plain language, it is clear that it is only for
the legislature to make the changes suggested by the High Court.
8. Ms. Meenakshi Arora, learned senior counsel appearing on
behalf of the respondents, countered each of these submissions. First
and foremost, she argued that the 2005 Act 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
HIRAL P. HARSORA AND ORS. v. KUSUM NAROTTAMDAS
HARSORA AND ORS. [R.F. NARIMAN, J.]
the reach of the Act would have to be either struck down as being
violative of Article 14 of the Constitution or read down. According to
her, given the object of the statute, which is discernible clearly from the
statement of objects and reasons, the preamble, and various provisions
of the 2005 Act which she took us through, it is clear that the expression
"adult male person" is a classification not based on any intelligible
differentia, and not having any rational relationship with the object sought
to be achieved by the Act. In fact, in her submission, the said expression
goes contrary to the object of the Act, which is to afford the largest
possible protection to women from domestic violence by any person,
male or female, who happens to share either a domestic relationship or
shared household with the said woman. In the alternative, she argued
that the High Court judgment was right, and that 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
to be achieved would only then be fulfilled. She referred to a large
number of judgments on Article 14 and the doctrine of severability
generally. She also argued that within the definition of"shared household"
in Section 2(s) of the Act, the "respondent" may be a member of a joint
family. She has adverted to the amendment made to the Hindu Succession
Act in 2005, by which amendment females have also become coparceners
in a joint Hindu family, and she argued that therefore the 2005 Act is not
in tune with the march of statutory law in other areas. She also countered
the submission 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
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
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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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
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stultify what was sought to be achieved by the Act, and would make the
Act a dead letter insofar as these persons are concerned. She also argued
that the Act would become unworkable in that the reliefs that were to be
given would only be reliefs against adult male members and not their
abettors who may be females.
9. Ms. Pinky Anand, learned Additional Solicitor General for India,
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
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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
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require interference at our end.
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
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
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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:-
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"It is first necessary to discern the true purpose or object
of the impugned enactment because it is only with reference
HIRAL P. HARSORA AND ORS. v. KUSUM NAROTTAMDAS
HARSORA AND ORS. [R.F. NARIMAN, J:]
to the true object of the enactment that the existence of a
rational nexus of the differentia on which the classification
is based, with the object sought to be achieved by the
enactment, can be examined to test the validity of the
classification.
In Francis
Be1111io11 's
Statutory
Interpretation, ( 1984 edn.), the distinction between the
legislative intention and the purpose or object of the
legislation has been succinctly summarised at p. 237 as
under:
"The distinction between the purpose or object of an
enactment and the legislative intention governing it is that
the former relates to the mischief to which the enactment
is directed and its remedy, while the latter relates to the
legal meaning of the enactment."
There is thus a clear distinction between the two. While
the purpose or object of the legislation is to provide a remedy
for the malady, the legislative intention relates to the meaning .
or exposition of the remedy as enacted. While dealing with
the validity of a classification, the rational nexus of the
differentia on which the classification is based has to exist
with the purpose or object of the legislation, so determined.
The question next is of the manner in which the purpose or
object of the enactment has to be determined and the
material which can be used for this exercise. For determining
the purpose or object of the legislation, it is permissible to
look into the circumstances which prevailed at the time when
the law was passed 11nd which necessitated the passing of
that law. For the limited purpose of appreciating the
background and the antecedent factual matrix leading to
the legislation, it is permissible to look into the Statement of
Objects and Reasons of the Bill which actuated the step to
provide a remedy for the then existing malady. In A.
Thangal Kunju Musaliar v. M'" Venkitachalam
Potti [(1955) 2 SCR 1196 : AIR 1956 SC -246 : ( 1956) 29
ITR 349], the Statement of Objects and Reasons was used
for judging the reasonableness of a classification made in
an enactment to see if it infringed or was contrary to the
Constitution. In that decision for determining the question,
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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
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
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."
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
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
a classification must satisfy two conditions. namely (i) that
the classification must be founded on an intelligible differentia
which distinguishes persons or things that are grouped
together from others left out of the group and (ii) that
differentia must have a rational relation to the object sought
to be achieved by the statute in question. The classification
may be founded on different basis, but what is necessary is
that there must be a nexus between the basis of classification
and the object of the Act under consideration.
The statement of objects and reasons of the Act is as under:
"Statement of Objects and Reasons of the East
HIRAL P. HARSORA AND ORS. v. KUSUM NAROTTAMDAS
HARSORA AND ORS. [R.F. NARIMAN, J.]
Punjab Urban Rent Restriction Act, 1949 (Act 3 of
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
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
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
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
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
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a ground to evict the tenant from the premises whether
residential or non-residential:
The provisions of the Act, prior to the amendment, were
uniformly applicable to the residential and non-residential
buildings. The amendment, in the year 1956, created the
impugned classification. The objects and reasons of the Act
indicate that it was enacted with a view to restrict the
increase of rents and to safeguard against the mala fide
eviction of tenants. The Act, therefore, initially providedconforming to its objects and reasons -
bona fide
requirement of the premises by the landlord, whether .
residential or non-residential, as a ground of eviction of the
tenant. The classification created by the amendment has
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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
the premises for his personal use and occupation. It is not
the tenants but the landlords who are suffering great
hardships because of the amendment. A landlord may
genuinely like to let out a shop till the time he bona fide
needs the same. Visualise a case of a shopkeeper (owner)
dying young. There may not be a member in the family to
continue the business and the widow may not need the shop
for quite some time. She may like to let out the shop till the
time her children grow up and need the premises for their
personal use. It would be wholly arbitrary- in a situation
like this -
to deny her the right to evict the tenant. The
amendment has created a situation where a tenant can
continue in possession of a non-residential premises for life
and even after the tenant's death his heirs may continue
the tenancy. We have no doubt in our mind that the objects,
reasons and the scheme of the Act could not have envisaged
the type of situation created by the amendment which is
patently harsh and grossly unjust for the landlord of a nonresidential premises." [paras 8, 9 & 13)
13. In accordance with the law laid down in these judgments it is
important first to discern the object of the 2005 Act from the statement
of objects and reasons:-
STATEMENT OF OBJECTS AND REASONS
1. Domestic violence is undoubtedly a human rights issue
and serious deterrent to development. The Vienna Accord
of 1994 and the Beijing Declaration and the Platform for
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Action ( 1995) have acknowledged this. The United Nations
Committee on Convention on Elimination of All Forms of
Discrimination Against Women (CEDA W) in its General
Recommendation No. XII (1989) has recommended that
State parties should act to protect women against violence
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of any kind especially that occurring within the family.
HIRAL P. HARSORA AND ORS. v. KUSUM NAROTTAMDAS
HARSORA AND ORS. [R.F. NARIMAN, J.]
2. The phenomenon of domestic violence is widely prevalent
but has remained largely invisible in the public domain.
Presently, where a woman is subjected to cruelty by her
husband or his relatives, it is an offence under section498A
of the Indian Penal Code. The civil law does not however
address this phenomenon in its entirety.
3. It is. therefore, proposed to enact a law keeping in view
the rights guaranteed under articles 14, 15 and 21 of the
Constitution to provide for a remedy under the civil law
which is intended to protect the woman from being victims
of domestic violence and to prevent the occurrence of
domestic violence in the society.
4. The Bill, inter alia, seeks to provide for the following:-
(i) It covers those women who are or have been in a
relationship with the abuser where both parties have
lived together in a shared household and are related by
consanguinity, marriage or through a relationship in the
nature of marriage or adoption. In addition, relationships
with family members living together as a joint family
are also included. Even those women who are sisters,
widows, mothers, single women, or living with the abuser
are entitled to legal protection under the proposed
legislation. However, whereas the Bill enables the wife
or the female living in a relationship in the nature of
marriage to file a complaint under the proposed
enactment against any female relative of husband or
the male partner, it does not enable any female relative
of the husband or the male partner to file a complaint
against the wife or the female partner.
(ii) It defines the expression "domestic violence" to include
actual abuse or threat or abuse that is physical, sexual,
verbal, emotional or economic. Harassment by way of
unlawful dowry demands to the woman or her relatives
would also be covered under this definition.
(iii) It provides for the rights of women to secure housing.
It also provides household, whether or not she has any
title or rights in such· home or household. This right is
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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
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.
(v)It provides for appointment of Protection Officers and
registration of non-governmental organizations as
service providers for providing assistance to the
aggrieved person with respect to her medical
examination, obtaining legal aid, safe shelter, etc.
5. The Bill seeks to achieve the above objects. The notes
on clauses explain the various provisions contained in the
Bill."
14. A cursory reading of the statement of objects and reasons
makes it clear that the phenomenon of domestic violence against women
is widely prevalent and needs redressal. Whereas criminal law does
offer some redressal, civil law does not address this phenomenon in its
entirety. The idea therefore is to provide various innovative remedies in
favour of women who suffer from domestic violence, against the
perpetrators of such violence.
15. The preamble of the statute is again significant. It states:
Preamble
"An Act to provide for more effective protection of the
rights of women guaranteed under the constitution who are
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victims of violence of any kind occurring within the family
and for matters connected therewith or incidental thereto."
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16. What is of great significance is that the 2005 Act is to provide
for effective protection of the rights of women who are victims of vi.olence
of any kind occurring within the family. The preamble also makes it
HIRAL P. HARSORA AND ORS. v. KUSUM NAROTTAMDAS
533
HARSORA AND ORS. [R.F.