The Protection of Women from Domestic Violence Act,2005 (DV Act) has been creatively used by many aggrieved women in India to reclaim or assert their rights against the male chavunistic society. As per Section 2 Clause (q) of DV Act, the Respondent means any adult
male person who is or has been in a domestic relationship. Hence, a
plain reading of this definition clause would show that an application
will not lie under the provisions of this Act against a female. There
is ambiguity in the definition clause if the main enacting part is
read with the proviso which uses, the expression â??relative of the
husbandâ? thereby extending the meaning of respondent without any
gender restriction. The High Courts have different views, while MP
High Court & Madras High Court opined that female members cannot be
made as respondents in the proceedings under the DV Act, the judgments
of Rajasthan High Court held that a female relative is not excluded
from the definition of respondent contained in Section 2(q) of the
Act. Recently, the Andhra Pradesh High Court in its speaking judgment
held that the ‘respondent’ as defined under Section 2(q) of the Act
includes a female relative. However, till date there is no final word
of Apex Court with respect to this vexed question of law in view of
divergent view of different High Courts. The question is basically
with respect to the correct interpretation and scope of proviso to
Section 2 (q) DV Act in the context of the scheme underlying the other
provisions of the Act as well as in tune with the object set out in
the statement of objects and reasons.]
The Protection of Women from Domestic Violence Act, 2005 (DV Act,
2005) came into force on 26/10/2006. The Statement of the objects and
reasons of the Act states that the Act was legislated on the basis of
the recommendation of The United Nations Committee on Convention on
Elimination of All Forms of Discrimination against Women (CEDAW). The
Statute is a benevolent piece of legislation aimed to provide for more
effective protection of 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.
The act inter-alia provides for various reliefs to the â??aggrieved
personâ? against the â??respondentâ? like protection order,
residence orders, and custody orders. Both the terms â??aggrieved
personâ? and â??respondentâ? have been defined under the definition
clause of the DV Act, 2005. As far as the definition of â??aggrieved
personâ? as defined under Section 2 (a) of DV Act, 2005 is concerned;
there is no controversy. However, same is not true when we visit the
definition of â??respondentâ? as defined under Section 2 (q) of DV
Act, 2005 which defines the same in following words:-
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.â?
The inherent ambiguity in the aforesaid definition clause, is very
much apparent from the reading of the main enacting part in which it
defines respondent as any adult male person in a domestic relationship
with the aggrieved person, at the same time the proviso of the same
definition clause says 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 (read without any gender bias) or
the male partner. A controversy that arose from the aforesaid
ambiguity is whether ‘respondent’ as defined under Section 2(q)
includes a female person or not under the scheme of DV Act, 2005.
The ambiguity with respect to the correct interpretation and scope of
the term â??respondentâ? first came up in the case of Ajay Kant and
Ors. v. Smt. Alka Sharma reported in 2008 (2) Crimes 235 (M.P.) in
which the Honâ??ble Madhya Pradesh High Court dealt with the notice
issued by the Magistrate to the petitioners on an application filed
under Section 12 of the Act. Learned single Judge after referring to
the definition of respondent in Section 2(q) and Statement of Objects
and Reasons for enacting the Act held that for obtaining any relief
under the Act, an application can be initiated against only adult male
person and on such application or under such proceeding, protection
order can be passed; those orders will also be passed only against the
adult male person and as provided under Section 31 of the Act, non
compliance of a protection order or an interim protection order has
been made punishable and as such it can be said that the complaint for
this offence can only be filed against such adult male
person/respondent who has not complied with the protection order, and
it is clear that the application under Section 12 of the Act which has
been filed by the respondent against petitioners No. 3 and 4 who are
not adult male persons is not maintainable and accordingly quashed the
proceedings against petitioners 3 and 4 therein.
The aforesaid judgment of the Ajay Kant (supra) was followed by the
Honâ??ble Madras High Court in the case of Uma Narayanan Vs. Priya
Krishna Prasad (2008) 3 MLJ 756 (Mad) in which the Honâ??ble Madras
High Court held that term respondent would mean only an adult male
person thus, an application under Section 12 of the DV Act, 2005 is
not maintainable as against a Women.
However, the subsequent decisions of Honâ??ble Rajasthan High Court
differed from the view taken by the Honâ??ble MP High Court and the
Madras High Court.
The Honâ??ble High Court of Rajasthan in Sarita vs Smt. Umrao, cited
as 2008 (1) WLN 359 has categorically held that â??From a plain
reading of the proviso to Section 2(q) of the Act of 2005 it is a
apparent that a complaint by a wife or a female living in relationship
in the nature of marriage may also file a complaint against a relative
of the husband. The term relative is quite broad and it includes all
relations of the husband irrespective gender or sex.â? The High Court
of Rajasthan in another case Nand Kishore and Ors. Vs State of
Rajasthan and Anr. cited as RLW2008 ( 4 ) Raj 3432 has interpreted the
S. 2(q) of the Act and its proviso, if read together nowhere suggest
that the relative of the husband or the male partner has to be a male.
In proviso to section 2(q) of the Act the word is â??relativeâ? and
not male relative. It further held that a female relative is not
excluded from the definition of respondent contained in section 2(q)
of the Act.
However, with due respect to the Honâ??ble MP High Court and Madras
High Court, the author is of the view that the judgment of the
Honâ??ble MP High Court is based on erroneous interpretation of
Section 2(q) of the DV Act, 2005 which purportedly rules out the Woman
as â??Respondentâ? under the scheme of DV Act, 2005. The Director of
Southern Institute for Social Science Research, Dr. SS.Jagnayak in his
report has described the ambiguity in Section 2 (q) as â??Loopholes to
Escape the Respondents from the Cult of this Lawâ? and opined in the
following words:-
â??As per Section 2 Clause (q) the Respondent means any adult male
person who is or has been in a domestic relationship. Hence, a plain
reading of the Act would show that an application will not lie under
the provisions of this Act against a female. But, when Section 19 (1)
proviso is perused, it can be seen that the petition is maintainable,
even against a lady. Often this has taken as a contention, when ladies
are arrayed as Respondents and it is contented that petition against
female Respondents are not maintainable. This is a loophole which
should be plugged.â?
The loophole with respect to the inherent ambiguity in Section 2 (q)
which Dr. SS Jagnayak suggests to be plugged can be done with correct
interpretation of main enactment of Section 2 (q) if read together
with proviso to Section 2 (q) DV Act in the context of the scheme
underlying the other provisions of the Act as well as in tune with the
object set out in the statement of objects and reasons. Now, letâ??s
see the interpretation and scope of Section 2 (q) DV Act in accordance
with the accepted principles of interpretation of statutes.
If we look at the definition of â??Respondentâ? as defined under
Section 2 (q) of DV Act, 2005, the definition can be segregated into
two parts:
(a) Main enacting part which deals with aggrieved person in domestic
relationship;
It carves out a situation in which the respondent can only be a male
person in domestic relationship with an aggrieved person against whom
the aggrieved person has sought any relief. Thus, the generality of
main enactment relates to â??aggrieved personâ?.
(b) Proviso; (providing for an exception to main enacting part) when
the aggrieved person is wife or female living in a relationship in the
nature of a marriage.
It carves out an exception to the generality of the main enactment,
which in clear terms says that in case an â??aggrieved personâ? is a
wife or female living in a relationship in the nature of a marriage,
she may also file a complaint against a relative of the husband or the
male partner.
If we look into the definition of the term â??Aggrieved Personâ? as
defined under Section 2 (a) DV Act, 2005 which mean 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. The definition of â??aggrieved personâ? in domestic
relationship is wide enough to cover sister, mother, daughter and
sister-in-law including the wife or any female living in the nature of
marriage. Thus, every relation in the nature of marriage necessarily
will be â??domestic relationshipâ? but the same is not true the vice
versa.
Thus, the proviso to Section 2 (q) carves out a special situation for
an aggrieved person who is wife; the respondent may be a female
relative of the husband or male partner. In other cases where the
aggrieved person is any woman in domestic relationship say sister,
mother etc. except wife or female in a relationship in the nature of
marriage, the complainant shall be necessarily be a woman and the
respondent also shall necessarily be a male as provided in the main
enacting part of Section 2 (q).
It is the accepted rule of interpretation with respect to
â??Provisoâ? as an internal aid to interpretation as enunciated in
the Judgment of Honâ??ble Apex Court in J.K. Industries Ltd. and Ors.
Vs. Chief Inspector of Factories and Boilers and Ors. 1996 VII AD (SC)
125 that proviso qualifies the generality of the main enactment by
providing an exception and taking out from the main provision, a
portion, which, but for the proviso would be part of the main
provision. As a general rule, in construing an enactment containing a
proviso, it is proper to construe the provisions together without
making either of them redundant or otiose. Even where the enacting
part is clear, it is desirable to make an effort to give meaning to
the proviso with a view to justifying its necessity. It is not a
proper rule of interpretation of a proviso that the enacting part or
the main part of the section be construed first without the proviso
and if the same is found to be ambiguous only then recourse may be had
to examine the proviso. On the other hand, an accepted rule of
interpretation is that a section and the proviso thereto must be
construed as a whole; each portion throwing light, if need be, on the
rest. A proviso is normally used to remove special cases from the
general enactment and provide for them specially.
Therefore, applying the ratio stated in J.K. Industries Ltd.,(supra)
the proviso of Section 2(q) should be read together with the main
enacting part to give meaning to the proviso with a view to justifying
its necessity and both should be read together without making either
of them redundant or otiose.
The proviso to Section 2 (q) deals with complaint against two
categories of persons i.e., (1) a relative of the husband or (2) the
male partner. By construing the main enactment part of Section 2 (q)
without taking into consideration the proviso, the meaning of
â??Respondentâ? is restricted only to the male persons, which makes
the expression â??a relative of the husbandâ? redundant as used in
proviso to Section 2 (q) which is not contemplated under the scheme of
DV Act, if read with Section 19 and Section 21 of the DV Act. The
wordings of Section 19 of the DV Act makes it clear that the section
provides for disposal of applications made under Sub-section (1) of
Section 12 by the Magistrate. Under Sub-section (1) of Section 19, the
Magistrate can pass any order against a female person other than the
orders under Clause (b). Whereas proviso to Sub-section (1) of Section
19 puts a bar on the power of the Magistrate for passing an order
against any person who is a woman under Section 19(1)(b).
In other words, except residence order under Section 19(1) (b), it is
competent for the Magistrate to pass orders against the relatives of
the husband including a female person under Section 19(1)(c) i.e.,
restraining the respondent or any of his relatives from entering any
portion of the shared household in which the aggrieved person resides.
For example, if the aggrieved person along with her husband resides in
a house owned by joint family including the presents of the
respondent, his brothers and sisters, if any, whether or not the
respondent has no legal or equitable interest or title in the shared
household, he can be restrained from dispossessing the aggrieved
person.
Further under Sub-section (8) of Section 19, if an aggrieved person
was provided with residential house towards her Stridhan, which is in
occupation of the relatives of the husband, the Magistrate can direct
the respondent including the female relative of the husband for return
of the possession of Stridhan property or valuable security, namely,
gold jewellery etc., which was in possession of the female member of
the husband.
Further, Section 21 of the Act deals with grant of temporary custody
of any child or children to the aggrieved person or the person making
an application on her behalf and specifies necessary arrangements for
visit of such child or children by the respondent. For instance, if
the children are under the custody of mother-in-law of an aggrieved
person, if we give a restricted meaning to Section 2(q), no such order
can be passed for giving temporary custody of the child against a
female relative of the husband i.e., father, mother who are residing
jointly.
It is it is a well settled principle of law that for the
interpretation of statute, attempt must be made to give effect to all
the provisions and the all the provisions should be read together. No
provision should be considered as surplus age or redundant which is
clear from the pronouncement of the Honâ??ble Apex Court in Bhavnagar
University v. Palitana Sugar Mill Pvt. Ltd. and Ors. (AIR 2003 SC 511)
. Thus, it is well settled that the Legislature does not use any word
unnecessarily. Every word, expression used in a statute has a meaning,
a reason and it cannot be devoid from its reason. If we construe a
statute without the reason underlying it, it would be like â??body
without a soulâ?. The statute should be construed with reference to
its reason as observed, in paragraph 9 of the judgment of the Apex
Court in Utkal Contractors & Joinery Pvt. Ltd. (supra)
â??…A statute is best understood if we know the reason for it. The
reason for a statute is the safest guide to its interpretation. The
words of a statute take their colour from the reason for it.â?
The provisions of DV Act i.e. the definition clauses, provisions of DV
Act, if read together with the Statement of objects and reasons under
Bill No. 116 of 2005 for passing the DV Act makes it clear that the
complainant shall be necessarily be a woman and the respondent also
shall necessarily be a male except in cases where the complainant is a
wife, the respondent may be a female relative of the husband or male
partner. The Bill under Clause 4(i) of the Statement of Objects and
Reasons seeks to cover those women who are or have been in a
relationship with the abuser where both parties have lived together in
a shred 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. 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 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. It would be pertinent to mention here that the judgment of
the MP High Court in Ajay Kant discussed supra though discussed the
Statement of Objects and Reasons of DV Act, 2005 has refrained from
discussing the aforesaid Clause 4(i) of the Statement of Objects and
Reasons which could have thrown some light on intention of the
legislature and would have guided the judicial wisdom to interpret the
provision of Statute in accordance with the legislative intent.
With due respect to the Honâ??ble MP High Court, it is the view of
this author that in the said judgment though resort to the Statement
of object and reasons was made to but its aid was not taken to
understand the true legislative intent. More so, it could not have
been done, as the said judgment omitted the vital Clause 4(i) of the
Statement of Objects and Reasons.
It is fairly well settled from a series of various judicial
pronouncement that reference to the â??Statement of Objects and
Reasonsâ? is permissible for understanding the background, the
antecedent state of affairs, the surrounding circumstances in relation
to the statute and the evil, which the statute was sought to remedy.
Justice G.P. Singh in his scholarly book â??Principles of Statutory
Interpretationâ? 8th Edn., 2001 has observed:
â??Reference to the Statement of Objects and Reasons is permissible
for understanding the background, the antecedent state of affairs, the
surrounding circumstances in relation to the statute, and the evil
which the statute sought to remedy.â? Further, there are various
judicial pronouncements in which the Honâ??ble Apex Court used the
external aid i.e. â??Statement of Objects and Reasonsâ? to find out
the true legislative intent. See Central Bank of India v. Workmen:
[1960]1SCR200 , B. Banerjee v. Smt. Anita Pan: [1975]2SCR774, Chern
Taong Shang v. S. D. Baijal, AIR1988SC603
The aforesaid view of the author finds support in the recent speaking
judgment of the Honâ??ble Andhra Pradesh High Court in Afzalunnisa
Begum & Ors Vs. The State of A.P. & ors Criminal Petition No. 7160 and
8495 of 2008 pronounced on 02/06/2009 in which the Honâ??ble High
Court after making detailed analysis of Section 2 (q) read with
various provisions of DV Act, 2005 particularly Section 19, 21
together with Statement of Objects and Reasons under Bill No. 116 of
2005 for passing the DV Act has in clear term laid down that â??the
‘respondent’ as defined under Section 2(q) of the Act includes a
female relative of the husbandâ?. The judicial pronouncement of the
Honâ??ble Andhra High Court makes sense as it has applied the sound
principles of interpretation of statutes as discussed by the author in
arriving at the aforesaid ratio. The ascertainment of legislative
intent is basic rule of statutory construction. A rule of construction
should be preferred which advances the purpose and object of
legislation. Though a construction according to plain language, which
ordinarily be adopted, such a construction should not be adopted where
it leads to anomalies, injustice and or absurdities. Having
ascertained the intention, the Honâ??ble Andhra High Court strived to
so interpret the statute as to promote or advance the object and
purpose of enactment. The judgment makes sense out of ambiguous &
unhappily worded definition of â??Respondentâ? where the purpose of
statute is apparent to the judicial eye from the Clause 4 (i)
Statement of Objects and Reasons under Bill No. 116 of 2005 for
passing the Act.
However, there is no final word from the Honâ??ble Apex Court with
respect to the correct interpretation and scope of the definition of
Section 2 (k) defining the term â??Respondentâ?, and it would be
interesting to view the stand of the Honâ??ble Apex Court when this
vexed question of law comes before it.
