Domestic Violence is a human rights issue. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for 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 of any kind especially that occuring within the family.
The Government of India with this view enacted The Protection of Women From Domestic Violence Act, 2005. It covers those women who are or have been in relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or adoption. In addition, relationship 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 this legislation. Whereas, the Act enables the wife or the female living in a relationship in the nature of marriage to file a complaint under the Act against any relative of the husband or the male partner, it does not enable any female relative of the husband or the male partner to file a complaint against the wife or the female partner.
According to Section 3 of The Protection of Women from Domestic Violence Act, 2005, the term, domestic violence includes actual abuse or threat that is physical, sexual, verbal, emotional or economic.
According to Section 2(a) of the 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 domestic violence by the respondent.
According to Section 2 (q), the word “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 relationship in the nature of marriage may also file a complaint under the Act against a relative of the husband or male partner.
However, now the mother-in-law can seek legal action against her daughter-in-law and even her minor grandchildren for domestic violence after the Supreme Court bench comprising Hon’ble Justice Kurien Joseph and Hon’ble Justice Rohinton Nariman in the matter Hiral P Harsora and Ors Vs. Kusum Narottamdas Harsora & Ors; (Civil Appeal No. 10084 of 2016), 10 SCC165, in their order passed on October 6, 2016, widened the scope of a provision of law that was seen as biased in favour of the son’s wife.
The cause of action began with Kusum Narottam Harsora and her mother Pushpa’s filing complaint against Pradeep (brother/ son of the aggrieved complainants respectively) and his wife and two sisters/ daughters under The Protection of Women from Domestic Violence Act, 2005, in the court of the Metropolitan Magistrate alleging acts of violence against them.
In the appeal by the respondent, the Bombay High Court discharged the respondents nos. 2 to 4 (wife of Pradeep and two daughters of Pushpa) from the said complaint while allowing the proceedings against Pradeep to continue, on the ground that a complaint under Section 2 (q) of the Act can only be made against adult male persons and therefore the said respondents, since they are females, are entitled to be discharged from the case.
The constitutional validity of Section 2 (q) of The Protection of Woman from Domestic Violence Act, 2005, was challenged in the Supreme Court; hence this major verdict of the Supreme Court came on appeal against the Bombay High Court’s judgment.
Now a complaint of domestic violence can be made against any person, who is, or has been in domestic relationship with the aggrieved person.
The bench struck down a portion of Section 2 (a) of the Act defining “aggrieved person” on the ground that it is violative of Article 14 of the Constitution and as such phrase “adult male” as appearing in Section 2 (q) of the Act being rendered otiose, also stands deleted.” The bench said that the words ‘adult male’ person were 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 words discriminate between persons similarly situated, and far from being in tune with, are contrary to the object sought to be achieved by the 2005 Act.”The bench in its 56-page judgement said the remaining part of the legislation has been kept untouched and would be operative.
Earlier, the daughter-in- law was the only woman who could sue her husband and all his relatives. The Court said that women as daughters-in-law could also be “perpetrators and abettors” of violence. As such, there have been growing complaints about the abuse of law at the hands of daughters-in-law to put pressure on husbands, especially for seeking a hefty divorce or dowry related settlement.
With regard to including minors as participants of violence, the Court said, ” the microscopic difference between male and female, adult and non-adult” was not real, substantial or even rational. They added that it is not inconceivable that older minors who are 16 or 17 could harass women in the house. Hence, the Court rejecting the popular belief that juveniles couldn’t harass the elders included them too in the ambit of domestic violence.
Renowned Advocate O.P. Saxena said that technically speaking even a daughter can take her mother to court. However, Saxena expressed surprise on application of provisions on respondents other than husband especially minors with regard to Section 19 (1) a, b, c, f, which deal with restraining the respondent from dispossessing or disturbing the possession, directing the respondent to remove himself/ herself from the shared household, restraining the respondent entering any portion of shared household, directing the respondent to secure same level of alternate
accomodation for the aggrieved person. That way how these rules will apply on a minor or an unemployed household member? Moreso, if a minor is held as ‘respondent’ will he/she be tried by Juvenile Board, what relief claim can you impose on a minor. These are ambiguities and ramifications which need to be addressed.
Appreciating the Supreme Court verdict, Advocate Harshvardhan Sharma, said, “The society should not act in a stereotype manner presuming that in a domestic relationship, it is the daughter-in-law who is always a victim and the mother-in-law is always a cruel and aggressive figure. It differs from case to case and situation to situation. The law should treat
ach woman at par and each woman irrespective of relationship should get protection. I hope there shall be more visible peace in the families now.”
Talking to Lawyers Update, learned senior Advocate, Fali Nariman said, “The decision in Hiral P Harsora’s case by a Bench of two judges of the Supreme Court of India is important and significant, not so much because it struck down the words, “adult male” from the definition clause in The Protection of Women from Domestic Violence Act, 2005, but that it did not agree with the Bombay High Court that the provision needed to be “read down”.
“It has hopefully put an end to the practice developed in recent times of saying that an enactment must be read down in arriving at its legal meaning. As pointed out in the authoritative 5th Edition of Bennion on Statutory Interpretation (page 1324)-‘the use of the term of “reading down” is not helpful since it only applies where such reading of the provision is “possible”, the expression “reading down” is nothing but a euphemism for “strained construction”: a familiar concept in statutory interpretation, and (as Bennion says), it would promote desirable consistency to use the term “strained construction” rather than “talking vaguely” (as the Bombay High Court did) about “reading down”.This is why the decision of the Supreme Court of India is significant and important.”
“The Supreme Court has neither changed nor “diluted” the purpose of this Act as stated in the Objects and Reasons. 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 women from being victims of domestic violence and to prevent the occurrences of domestic violence in the society.The Court has also not converted a “biased law” in to a gender-neutral law: on well settled rules of statutory interpretation it would have no power or jurisdiction to do so.”
Further, can a husband initiate proceedings against wife under DV Act? After the Supreme Court verdict, Karnataka High Court held that any person, whether male or female, who is the victim of domestic violence can invoke the provisions under the Act.
This was ruled by Justice Anand Byrareddy while hearing a petition filed by one petitioner Mohammad Zakir against dismissal of his complaint filed against his wife and relatives under Domestic Violence Act, by Additional City Civil Court, Bangalore.The civil judge was convinced that the Act as the name suggests is clearly in favour of the protection of women and does not contemplate any male person being aggrieved by domestic violence.
However, when the case was brought before the Karnataka High Court, the High Court interpreted the matter in the light of the appeal before the Supreme Court in the case of Hiral P Harsora vs. Kusum Narottamdas Harsora, wherein the Supreme Court had struck down a portion of Section 2 (a), on the ground that it is violative of Article 14 of the Constitution and the words “adult male” as appearing in Section 2 (q) stood deleted.
The High Court ruled, ” If the said section is read after deleting the expression “adult male”, it would appear that any person, whether male or female, aggrieved and alleging violation of the Act could invoke the provisions under the Act. In that view of the matter, the petitioner’s complaint was not trashed on the ground that the Act does not contemplate provision for men and it could only be in respect of women”. The High Court directed the Additional City Civil Judge to review the complaint afresh. Whereas, later on the aforesaid verdict of Karnataka High Court delivered by Justice Anand Byrareddy was withdrawn by him when an Advocate opposed the verdict alleging that the Supreme Court’s verdict had wrongly been interpreted by the Hon’ble Judge.
Way back in July, 2014, Woman and Child Development Minister Meneka Gandhi had reportedly asked her subordinates to work on incorporating a provision under which women who face violence by their sons and daughters-in-law can also approach the protection officers. “Many cases have been brought to the notice of the minister where elderly women have been misbehaved with or even tortured by their sons and daughters-in-law for property or other reasons. Even when the case is genuine, no action can be taken against the daughter-in-law under the law. The minister felt that the law should protect all women regardless of their relationship with the oppressor.”, said the report.
However, the best course for the married couples is to maintain the excellence of behaviour, mutual cooperation and understanding within the domestic household, to avoid any legal battle leading to divorce.
Here are a few quotes for a mirthful nuptial concord:
- ” I chose my wife, as she did her wedding gown, for qualities that would wear well”- Goldsmith
- “If you would marry suitably, marry your equal”-Ovid
- “Maids want nothing but husbands, and when they have them, they want everything”-Shakespeare
- ” Wedlock is like wine, not properly judged of till the second glass”- Jerrold