Author: Rashmi Gagwani Dudeja, Advocate

Introduction

Women in Indian society play a very important role in keeping together the ties in a family. They are considered as the backbone of the family, helping and supporting the family in every possible way. The women are thus the very backbone of our society and for the progress of any society it is therefore necessary that the women are duly empowered and freed from the shackles of any bias, discrimination, violence or inequality. Despite their significant contribution to the family as well as towards society, women have struggled for several years to be heard and receive equal treatment in the patriarchal setup of the Indian society. Apart from the societal stereotyping, bias and even crimes against women, there has been an increase in the instances of violence and abuse against women from within the family itself. Domestic violence is a worldwide phenomenon and efforts have been made to redress the same by various international fora.

The Vienna Accord 1994 and the Beijing Declaration and Platform for Action (1995) had acknowledged that domestic violence was undoubtedly a human rights issue. UN Committee on Convention on Elimination of All Forms of Discrimination Against Women in its general recommendations had also exhorted the member countries to take steps to protect women against violence of any kind, especially that occurring within the family, a phenomenon widely prevalent in India.[1]

The Protection of Women from Domestic Violence Act, 2005 (the DV Act for the sake of brevity) was enacted to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto.[2] Before the enactment of the DV Act, when a woman was subjected to cruelty by her husband or his relatives, the victim could approach the court under section 489 A of the Indian Penal Code, 1860. The civil law did not address this subject in its entirety.[3]

The preamble of the DV Act refers to violence of any kind within the family. The DV Act thus entails within its scope violence whether physical, sexual, verbal, emotional or economic. There is no reference as to the gender of the person committing such acts of violence.  

It is noticed that at many times, the perpetrators and abettors of domestic violence in given situations are also the women themselves. In the light of the same, the present research article discusses as to who can be ‘Respondent’ in a domestic violence complaint vis-à-vis the judgement of the Supreme Court in the case of Hiral P. Harsora and Ors. vs. Kusum Narottamdas Harsora and Ors.[4]

KEY DEFINITIONS:

Aggrieved person:

According to section 2(a) of the DV Act 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.       

Domestic relationship:

According to section 2(f) of the DV Act, 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.

Respondent:

According to section 2(q) of the DV Act, 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 the 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.

The DV Act provides for various remedies including monetary reliefs, accommodation and several other reliefs which can be sought by the aggrieved person against the respondent. The scope of the present article is restricted to who can be respondent under the DV Act.

Respondent under the DV Act.

The DV Act makes is amply clear that a complaint under the DV Act can be filed against an adult male person. The DV Act does not name any particular relationship. However, the Act requires that the respondent against whom relief is being sought is or has been in a domestic relationship with the aggrieved person. The proviso further states that aggrieved wife or female may also file a complaint against a relative of the husband or the male partner.  In Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade, [5] the Hon’ble Supreme Court has held that:

“it is true that the expression “female” has not been used in the proviso to section 2(q), but, on the other hand if the Legislature intended to exclude females from the ambit of the complaint, which can be filed by an aggrieved wife, females would have been specifically excluded. No restrictive meaning has been given to the expression “relative”, nor has the said expression been specifically defined in the Domestic Violence Act, 2005, to make it specific to males only. In such circumstances, it is clear that the legislature never intended to exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act, 2005.”

In this context, it is also important to mention the case of Hiral P. Harsora and Ors. vs. Kusum Narottamdas Harsora and Ors.[6] The Supreme Court observed that the definition of domestic relationship contained in section 2(f) is a very wide one and it makes it clear that domestic relationships involve persons belonging to both sexes and 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. When section 3 defines domestic violence, it is clear that such violence is gender neutral and that physical abuse, verbal abuse, emotional abuse and economic abuse can all be by one woman against another. Even sexual abuse may, in a given fact circumstance, be by one woman on another.

The Supreme Court in the said case of Hiral Harsora has taken into consideration the various innovative reliefs available to the aggrieved person under the DV Act. These reliefs pertain to right to reside in a shared household, protection orders, residence orders, monetary reliefs, custody orders, compensation orders. In this regard the Supreme Court has thrown light on a very important aspect that is: If these reliefs can be sought only against an adult male person, the object of the Act can be easily defeated by an adult male person not standing in the forefront, but putting forward female persons. 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 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 stultify the reach of such protection orders. Apart from this important aspect, the Supreme Court has taken a step further and has also taken into consideration that it is not difficult to conceive of a non-adult 16 or 17 years old member of a household who can aid or abet the commission of acts of domestic violence, or who can evict or help in evicting or excluding from a shared household an aggrieved person.  

The judgement further discusses that the reliefs available under section 18 to 22 of the DV Act can be sought by the aggrieved person in legal proceedings before a civil court, family court or criminal court against the Respondent and these proceedings may well include female members of a family, and reliefs sought in those proceedings would not be restricted by the definition of respondent in the DV Act. This led the Supreme Court to observe that an invidious discrimination will result, depending upon whether the aggrieved person chooses to institute proceedings under the 2005 Act (DV 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 thus the observation of the Supreme Court that there is no intelligible differentia between a proceeding initiated under the DV Act and proceeding initiated in other fora under other Acts, in which the self-same reliefs grantable under the DV Act, which are restricted to an adult male person, are grantable by the other fora also against female members of a family.

Striking off the words ‘adult male’:

While dealing with the question of constitutional validity of section 2(q) of the DV Act, the court placed reliance on several judgements and took into consideration the object, intent of the DV Act as well as the reliefs that the statute provides for. With regard to the object sought to be achieved by the DV Act, it was observed by the Supreme Court that the difference between male and female, adult and non adult is neither real nor substantial. The words adult male person was contrary to the object of affording protection to women who have suffered from domestic violence of any kind. Thus, the Supreme Court struck down the words ‘adult male’ before the word ‘person’ in section 2(q) of the DV Act, as these words discriminate between persons similarly situate and are contrary to object sought to be achieved by the DV Act.

On applying the severability principle, the Court has clarified that having struck down the expression ‘adult male’ in section 2(q) of the DV Act, the rest of the Act is left intact and can be enforced to achieve the object of the legislation. The Court further observed that the proviso to section 2(q) only carved out an exception to a situation of ‘respondent’ not being an adult male. Thus once ‘adult male’ is struck down, the proviso has no independent existence, having rendered otiose.

Conclusion:

In the case of Hiral Harsora, the Supreme Court declared that the words ‘adult male’ in section 2(q) of the DV Act will stand deleted since these words do not square with Article 14 of the Constitution of India. Consequently, the proviso to section 2(q), being rendered otiose, also stands deleted.

This judgement of the court is a big step towards achieving the object of the DV Act in its true spirit. This judgment has widened the definition of respondent against whom reliefs can be sought under the DV Act. This quantum step has ensured that the victims of domestic violence are not rendered remediless under any garb whatsoever. The act takes away any gender bias and the abettors and perpetrators of domestic violence are treated equally under the Act. The judgement of the Court clearly shows how the law pertaining to domestic violence has evolved through the years to achieve the true intent of the legislature to protect the women from domestic violence of any kind.

References

1.    Indra Sarma vs. V.K.S. Sarma, AIR 2014 SC 309

2.    Preamble, The Protection of Women from Domestic Violence Act.

3.    Indra Sarma vs. V.K.S. Sarma, AIR 2014 SC 309

4.    AIR 2016 SC 4774

5.    (2011) 3 SCC 650

6.    AIR 2016 SC 4774