The Supreme Court's judgment in Hiral Harsora v. Kusum Harsora was brought to TDL's notice last weekend (thanks BP!), and boy is it an intriguing one. I really should have published this post several days ago, but it took me quite a while to get my head around the judgment (it's quite clear I really, really needed to start this blog!), and while I was doing so, new commentary on the judgment kept popping up, and its assimilation took even longer. Anyway, here we finally are.
The DV Act
India's domestic violence statute - the Protection of Women from Domestic Violence Act, 2005 ("the DV Act") - was enacted to ensure the protection of women from abuse by adult male persons (or so we thought), and offers civil remedies, over and above the criminal proceedings that can be undertaken as per Section 498A of the Indian Penal Code. In its decade-old existence, the DV Act has given rise to rich debate ranging from the customary media criticism, to a successful awareness campaign ("Bell bajao"), and the judgment we're considering today expands the scope of the Act and adds to the already lively and wide-ranging jurisprudence on this matter.
TDL had to first recall that the DV Act protects not just a wife (from abuse by her husband), but also a mother (from abuse by her son), or a sister (from abuse by her brother); i.e. any adult male person related to a woman by blood/adoption or marriage/live-in relationship can be made a "respondent" by the woman if she is facing abuse (physical, verbal, economical, sexual) from him in their shared household. The fact that such a legislation needed to be enacted doesn't reflect well on the country's men; they come off as really contemptible, these adult male persons (AMPs). Great Indian Male Persons of course don't stop at that: they have been known to express their manhood by not dirtying their hands, and getting their mother/sister to instead abuse their womenfolk. The DV Act, therefore, handles this scenario through a proviso in the definition of a respondent.
Section 2(q):
“respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.
It is clear that this expansion in the definition of the respondent by the proviso to S. 2(q) is applicable only to a woman who is married to the AMP or is in a live-in relationship with an AMP. Only a wife/partner can seek relief against abuse committed by her husband/partner's (male/female) relatives; a mother/sister's options are restricted to the AMP only. It is this restriction that the Supreme Court has now done away with.
Other relevant terms defined by the Act:
S. 2(a)
“aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;
S. 2(f)
“domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;
S. 2(s)
“shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.
The Case
Kusum and her mother Pushpa Harsora filed a complaint under the DV Act in April 2007 against Kusum's brother (and Pushpa's son) Pradeep, Pradeep's wife Hiral, and Kusum & Pradeep's two other sisters (S1 and S2. Sorry.) alleging "various acts of violence against them". This complaint was withdrawn a couple of months later. In October 2010, the mother-daughter duo filed two fresh complaints, one against Pradeep and a separate one against Hiral and S1 & S2, who applied to the Metropolitan Magistrate to discharge them, arguing that a complaint under Sections 2(a) and 2(q) of the DV Act can be made only against an adult male person. These three female respondents failed to secure a discharge from the Magistrate, but succeeded in their subsequent writ petition before the Bombay High Court, which "on a literal construction of the 2005 Act, discharged the aforesaid three respondents from the complaint."
It was then Kusum and Pushpa's turn to file a writ petition before the Bombay High Court, challenging the constitutional validity of Section 2(q) of the DV Act, which had prevented them from complaining against their female blood-relatives or daughters-in-law. A division bench of the Bombay High Court found that S. 2(q) needed to be "read down" in order for it to not violate Article 14 of the Constitution of India.
[W]e are inclined to read down the provisions of section 2(q) of the DV Act and to hold that the provisions of "respondent" in section 2(q) of the DV Act is not to be read in isolation but has to be read as a part of the scheme of the DV Act, and particularly along with the definitions of "aggrieved person", “domestic relationship" and "shared household" in clauses (a), (f) and (s) of section 2 of the DV Act.
The court went on to hold that a complaint against female blood-relatives (or daughters-in-law) would be maintainable, provided they were co-respondents in a complaint against an adult male respondent. Hiral et al appealed to the Supreme Court against this judgment, and hearings were held before Kurien Joseph and Rohintan Fali Nariman, JJ.
The Judgment
Justice Nariman has dutifully quoted Sr. Adv. Harin Raval's arguments for the appellants, and it's difficult to refute them, really:
[He] 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.
Meenakshi Arora, Sr. Adv. for Kusum-Pushpa, argued by drawing from her quiver the "social beneficial legislation" arrow, submitting that any definition which seeks to restrict the reach of such legislation would have to be either struck down as being violative of Article 14 of the Constitution or read down. She went on to contend that
the object of the Act 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, and the expression "adult male person" goes contrary to this object and should be struck down for violating Art. 14 and deleted from S. 2(q). The Act as a whole would continue to stand and the object sought to be achieved would only then be fulfilled.
The Court ended up agreeing with Ms. Arora's contentions, as summarized in this Bar & Bench report. The words "adult male person" have been deleted from S. 2(q) for violating Art. 14. What is not immediately clear though, is the reasoning employed to arrive at this conclusion.
Article 14 of the Constitution accords equality of treatment to all persons similarly situated. Any invidious discrimination is obnoxious to equality. Thus, the husband and relatives of husband of a married woman form a class apart by themselves and it amounts to reasonable classification especially when a married woman is treated with cruelty within the four-walls of the house of her husband and there is no likelihood of any evidence available. Consequently, Section 498A of the Code cannot be said to be offensive of Article 14 of the Constitution.
So husbands and their female relatives, apparently, form a class of their own, when acting in collusion against the wife, so that provisions such as S. 498A of IPC and the proviso to S. 2(q) of DV Act are saved from being assailed by Art. 14, but adult males on their own do not form a separate class, as that would go against the true object of the Act? Of the Domestic Violence Act?
A significant role in the Court arriving at its conclusions was played by the Delhi High Court's 2011 judgment in Kusum Lata Sharma v. State, wherein it was held that a woman is entitled to file a complaint under the DV Act against her daughter-in-law. This judgment was appealed against but the Supreme Court had dismissed the Special Leave Petition. Pinky Anand, Additional Solicitor General of India, submitted therefore that, by extension, a woman (Pushpa) can file a complaint against her daughters (S1 & S2) or a woman (Kusum) can file a complaint against her sisters, and the Government of India saw no reason to interfere.
The Kusum Lata Sharma judgment itself relies on the Supreme Court's opinion in Sandhya Wankhede v. Manoj Wankhade, a case that deals with a woman filing a complaint against her husband's female relatives, and so shouldn't have such significant precedential value in a female v. non-2(q)-proviso female case. Kusum Lata Sharma also relies on Varsha Kapoor v. Union of India, another case that falls under the purview of 2(q)'s proviso. Both Sandhya Wankhade and Varsha Kapoor ended up holding that "relative" in the proviso to S. 2(q) can mean female relative as well. Which of course is fine. Extending that logic to say that any complaint under the DV Act can be filed against any female relative, and in fact against non-adult male relatives, even when the AMPs in the household seemingly sit back watching the proceedings passively, is a rather large leap, in TDL's opinion. And I'm not even going to talk about the example given in the judgment about a 16-17 year-old boy committing domestic violence but getting away with it because of the protection offered by "adult" in AMP. The impugned judgment by the Bombay High Court begins to seem like an appropriate-enough measure.
This is not to say that the outcome is necessarily harmful or that the motive is sinister, just that the reasoning doesn't seem too sound. It is understandable to try and extend the scope of the DV Act to include abuse committed by women (daughters/sisters/daughters-in-law) on other women (mothers/sisters/mothers-in-law respectively); there must be many cases that demonstrate the pervasiveness of this category of domestic violence. TDL believes this expansion could have been left to Parliament. In fact, it won't be surprising to study in the near future a DV Act that protects all individuals (females, males, others) from domestic violence...
Concluding Thoughts
So, another bastion of rightful male dominance has crumbled. AMPs can basically sit brooding quietly in the corner, reminiscing on their erstwhile power and influence, quoting Tennyson's Ulysses out of context. Even women can now be dragged into court for abusing women. They really won't have much use of us at this rate...
