Hiral P. Harsora v. Kusum Narottamdas Harsora
Supreme Court of India · 6 October 2016 · 2 judges
The words 'adult male' in the definition of 'respondent' in Section 2(q) of the Domestic Violence Act, 2005 violate Article 14 and were struck down, so women and non-adults can be respondents; the proviso became otiose.
Facts
In 2007 Kusum Narottamdas Harsora and her mother filed a complaint under the 2005 Act against her brother, his wife and two sisters; it was withdrawn with liberty to file afresh. Fresh complaints followed in 2010. On 15.2.2012 the Bombay High Court, on a literal reading, discharged the three female respondents because Section 2(q) defines 'respondent' as an 'adult male person', and that order became final. Mother and daughter then filed a writ petition challenging the validity of Section 2(q). By judgment dated 25.9.2014 the Bombay High Court read down Section 2(q) so that female relatives could be joined as co-respondents with an adult male, but not proceeded against alone. The appellants challenged that judgment.
Questions before the Court
- Whether the words 'adult male' in the definition of 'respondent' in Section 2(q) of the Protection of Women from Domestic Violence Act, 2005 violate Article 14 of the Constitution.
- If so, whether those words can be severed so that the rest of Section 2(q) and the Act continue to operate.
- Whether the Bombay High Court was right to read down Section 2(q).
What the Court held
- The object of the 2005 Act, seen from its Statement of Objects and Reasons, preamble and provisions, is to protect women from violence of any kind within the family. Domestic violence as defined in Section 3 is gender neutral, and its perpetrators and abettors can be women.
- Confining 'respondent' to an adult male defeats Sections 17(2), 18(b), 19(1)(c), 20 and 26: women and non-adults could evict, abet or defeat orders, and the same reliefs could be had against female relatives in other proceedings but not under the Act. The classification has no rational relation to the object and is contrary to it.
- The words 'adult male' before 'person' in Section 2(q) were struck down as violating Article 14. The word 'adult' carries the same discriminatory vice as its companion 'male'.
- Applying the doctrine of severability, the rest of Section 2(q) and the Act can be enforced without those words. The proviso, which only carved out an exception to the 'adult male' requirement, is rendered otiose and also stands deleted.
- The High Court judgment reading down Section 2(q) was set aside. The Court noted that reading down cannot mend or bend a provision in clear language and that 'reading up' is not permissible. On counsel's statement, nothing survived in the 2010 complaints.
Why it matters
The judgment deletes the words 'adult male' from the definition of 'respondent' in the 2005 Act, so a complaint of domestic violence may be brought against a woman or a non-adult who is in a domestic relationship with the aggrieved person. It applies the Article 14 test of intelligible differentia and rational nexus to strike down a classification that defeats the object of a beneficial statute, and severs the offending words and the dependent proviso instead of reading the provision down.
In the Court's words
Copied from the official judgment; each passage links to its page.
“In fact, as per the principle settled in the Subramanian Swamy judgment, the words "adult male person" are 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 situate, and far from being in tune with, are contrary to the object sought to be achieved by the 2005 Act.”
“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. Section 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.”
“An application of the aforesaid severability principle would make it clear that having struck down the expression "adult 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 adult male. Once we strike down 'adult male', the proviso has no independent existence, having been rendered otiose.”
“We, therefore, set aside the impugned judgment of the Bombay High Court and declare that the words "adult male" in Section 2(q) of the 2005 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.”
Provisions interpreted
Related judgments
- Followed in Satish Chander Ahuja v. Sneha Ahuja (2020)
Case and bench
- Parties
- Hiral P. Harsora v. Kusum Narottamdas Harsora
- Case
- Civil Appeal No. 10084 of 2016 (arising out of SLP (Civil) No. 9132 of 2015)
- Decided
- 6 October 2016
- Bench
- Kurian Joseph, R.F. Nariman
- Opinions
- Unanimous. Judgment delivered by R.F. Nariman, J.; Kurian Joseph, J. also signed.
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